Legislation
Class Notes
More on Blackstone’s
legisprudence
We
noted yesterday that Blackstone’s view of the common law as “found” or “discovered”
is at best overstated. Doctrines that do
develop are created, particularly by the best common law judges. Think about whether there is any validity to
Blackstone’s “principled” view of the common law if it’s not doctrinal. What do courts do that’s principled? What makes what judges do under the common
law “principled”? It might be plausibly
fair, but how do they justify what they’re doing? The judges believe that they are restating
the law that’s already been there. Been
where? They are reasoning from
precedent. Are they making rules of general
application that will apply to all cases?
They reason from prior cases, and then decide just this case. They
articulate a rule that applies to this
particular situation.
Judges
decide cases based on precedent. The
notion is that there was a faith in legal process in the first half of the 20th
century in terms of the reasonableness of the procedures used. Those procedures could also be applied to the
statutory world. It was believed that
the process by which law is made is so great that the result can’t be
wrong. Some believe that every statute
is a purposeful act and that legislative procedure assures objectivity. It’s an informed
process.
When
the legal process theory was in the ascendant in the middle of the 20th
century, the legislatures gained more respect.
They were seen as better positioned than courts to tackle tough
issues. The lawmaking process in the
This
is an idealized version of both how legislatures operate and also how courts
operate.
Agenda
selection is an exercise in ordered chaos!
Was
this case rightly decided?
Moragne v.
States Marine Lines, Inc.
A
longshoreman is killed by working in
|
Death
in territorial waters |
Death
on the high seas |
Death
by negligence |
Jones
Act |
Jones
Act Death
on the High Seas Act |
Death
by unseaworthiness |
Nothing
before Moragne |
Death
on the High Seas Act |
Mrs.
Moragne’s claim seems to fall through the cracks in the law. Why should the Supreme Court address this at
all? Congress has had anywhere from
50-80 years to fix the problem. Does
that Congress inaction mean that the Court should not be inventing a new
remedy? What would Blackstone say?
What
if the Death on the High Seas Act had been frequently amended, but the issue
that comes up in this case had not been addressed?
The
Court borrowed English common law for The
Harrisburg. Why? It’s the blessings of age. The doctrine never had any practical validity
in our country, but we’ve accepted it for centuries. Does Harlan rely on this alone? He says that there is no justification for
this rule.
Before
he speaks to the amicus brief, he talks about how a legislature enacts
policy. He talks about the fact that you
must consider the scope of the sphere of the legislative enactment and whether
it should be narrowly or broadly interpreted.
That is the quintessential legal process decision.
Harlan
thinks that statutes should be given appropriate weight.
This
is a revolutionary opinion! It is
important to weave the policies together.
What
about the “anomalies”?
1. Unseaworthiness in
territorial waters produces liability if you’re injured, but not if you’re
killed. What principle would lead you to
conclude that you can recover if you’re injured within territorial waters, but
not if you’re killed? The idea would be
that only victims recover and not decedents.
So it’s not completely
irrational. It might be bad policy, but
you can come up with an explanation.
2. Identical breaches of duty,
one inside the three mile limit and one outside, produce different results as
to liability. Is there a rational reason
for that? It’s more dangerous to be in
the high seas. It’s not irrational to
suppose that we’ll have different levels of liability.
3. A seaman is covered by the
Jones Act, while a longshoreman is not.
Should
we fill in these gaps with common law?
So
what does the federal text say? Does the
text of the two federal laws help or hurt Justice Harlan? How far apart were the statutes passed? They were passed during the same Congress. The same Congress looked at the same problem
and decided to cover different jurisdictions with different standards. This is not helpful to Justice Harlan! A single Congress has looked at this and
decided that it doesn’t look inadvertent or like an oversight.
Congress
knew The Harrisburg existed when they
were legislating. Why didn’t Congress repudiate
it as to territorial waters as well as the high seas?
Harlan
uses the legislative history as a reason to step in now. The language in the legislative history
suggests that Congress was trying to fill a void in the law in 1920. The void in the law in 1920 was the absence of
a wrongful death remedy on the high seas.
States had been acting to fill that void in territorial waters.
Congress
was not surveying the entire field and realizing that they were leaving a
gap. Congress was focused on a specific
area and filling a gap. They were
worried about the high seas and not
other stuff.
Legislatures
could be doing one of two things: either they could be addressing a concept
that’s come up before, or they could be venturing into new territory. The thing that’s going on is either
legislation is policy, an instrumentality (which can be extended by courts as common
law agents according to Harlan), or else they are deals, and the scope of the statute
is exactly the basis for going no further.
If there is a compromise or what looks like a compromise, we should
notice what gaps legislatures have chosen not to fill in.
The
Supreme Court feels authorized to extend that policy. But then we have to deal with the problem of stare decisis. You could die on the high seas through an
accident or injury that doesn’t take the whole ship down with you.
We
have an old case that has been relied upon many times. The Court is creating a cause of action that Congress
failed to create earlier. There could be
a stare decisis problem here.
Harlan
goes through various considerations. He
argues that reliance is an easily deflectable interest here. No matter how settled the rule is, no one is
going to be surprised that there are big risks from unseaworthy vessels. A change in this particular rule is probably
not going to cause a radical change in behavior.
But
if you create a new cause of action, complications ensue! One problem is whether wrongful death
survivors can recover for loss of consortium.
The Death on the High Seas Act is explicit in limiting damages to
pecuniary losses. How can we argue both
sides of that?