Legislation
Class Notes
Chalkboard notes
1. Congress reenacts statute
without changes or comments
2. Congress takes no action on statute
after judicial interpretation is either:
a. Raised at hearings
b. Criticized in report
3. Congress amends statute but
does not address prior precedent
Harlan
concluded that stare decisis could be overcome in Moragne because making a more just new rule would create more faith
in the justice system than sticking with the bad old rule. But if you make a new rule, it makes for a
lot of work for a lot of lawyers figuring out the contours of the law and it
will now stand.
How
would you argue that under Moragne
you should not recover for loss of affection if you were to win in one of these
actions? Moragne is a common law decision, not an interpretation of the
How
would you argue that in light of allowing this action to proceed as a matter of
common law we should actually allow it to go beyond pecuniary losses and encompass
love, affection and loss of relationship?
Policy
is being divined from statute. How do we
fashion a rule of law? It’s a remedial cause
of action. People have suffered in a way
that the law hasn’t adequately addressed.
We might say, if Congress doesn’t want to change its statute, that’s
okay, but we’ll make the common law responsive to the problems of today.
Congress
went far enough to create a statutory cause of action. We have decided as a common law matter that
we would create an additional federal
common law cause of action. We use that statute
and extrapolate from it, but we don’t agree now what we feel the standard is now
than it was in 1920.
Are
there good reasons to extend the reasoning of Moragne? Why is it unusual
for courts to do what the Supreme Court did in Moragne, to extend the law beyond what the statute says?
Congress
makes laws. The courts have been active
in admiralty and maritime law. But if
you give the courts the power to fill in laws that Congress didn’t make, you
arguably create a competing legislature.
Flood v. Kuhn
It
is important to be clear to the legal background to the case. The issue of baseball antitrust has arisen
several times.
What
was the rationale for Federal Baseball?
When
does Congress first appear in this drama?
What happened in 1952? There was
a subcommittee report. What did they
say? Why did baseball need this reserve
clause? They said there were chaotic
conditions without a reserve clause. A
reserve clause requires an anti-trust exemption.
By
the 1950’s, most money is coming from sources that are inextricably
interstate. The time seems maybe to be
ripe for overturning Federal Baseball. Who else is aware of these changes? Congress is.
Since it’s a statute, Congress is aware of the changes and they fail to
propose new changes.
Should
the Court, as a matter of antitrust law statutory interpretation, fill in a gap
that has been created between baseball and other sports?
How
do you reject Toolson? You can go back to Moragne at least analogically.
They love baseball, and we’ll get to that in a minute. You can’t rely on a love affair.
You
could try to give a positive spin to it and say all the evidence in the record
says that Congress was something something.
Congress
wasn’t comfortable with it because 50 different times people tried to extend it
elsewhere and they said: “No, no, no!”
The
record is fertile!
The
opinion listed some stuff. Baseball
players! It was an encomium. Stare decisis is less troublesome when the
decision is wildly inconsistent with a lot of other existing law.
What
is the most persuasive form of inaction?
We’ll then do the funnel of abstraction.