Legislation Class Notes 2/18/04


The aftermath of Flood


There are at least three ways Congress might be silent in light of interpretation of statutory language.  They might reenact a statute without changes.  This is akin to reauthorization.  Congress might take no action on a statute after a judicial interpretation is raised.  Or Congress may amend a statute but not address the prior interpretation.


Which of these is the most “positive” inaction?  Which of these is most affirmative of what the court already decided?  If I want my judicial precedent to stick, then I want them to amend the statute without addressing the judicial interpretation.  There is a clear awareness that they aren’t doing anything.  They had the will to act and have lawmaking going on without disturbing the precedent.  When there is no lawmaking going on, then there isn’t really thinking going on.


Scalia says that there are many reasons Congress might not act, and so you can’t put that much weight on their total inaction.  If Congress actually acts on the statute in question but doesn’t change the judicial interpretation then that should bear more weight.


The more changes that are made, the more you can infer that someone was “on watch”.


Stare decisis


We have talked a fair amount about why from a legal process point of view we have stare decisis and a strong presumption against overruling statutory precedents.  We will mostly let Congress rewrite statutes.  The courts will not rewrite statutes as much.


There is a public choice theory of stare decisis.  Public choice scholar take the view that judges elect to be bound by prior decisions when it suits them, but at other times they will decide cases on public policy or instrumentality grounds instead.  The more expertise a judge has in a certain area, the less they will tend to stick to stare decisis.  So when does stare decisis kick in?  It kicks in as a form of “expertise trading”.  Judges take a free-ride on judges who have come before them on issues where they don’t feel ideologically invested.  Stare decisis may enjoy special favor in especially complicated areas where judges feel less confident about their own expertise and are thus more willing to defer to the judgment of others.  That’s just a theory, though.


In the Curt Flood Act, Congress overrules these cases to a limited extent.  Congress substantially ratifies the reality that had come about without their involvement.  Players could now challenge collusive employment terms under the antitrust laws in a way they couldn’t before.


Patterson v. McLean Credit Union


This is how the Court is thinking about overruling prior statutory interpretations now.  It’s about § 1981.  Does it cover private discrimination or not?  The Court added a question to the cert granted and invited the parties to overrule Runyon v. McCrary.


What are three grounds that could overcome a prior precedent?


1.     There could be intervening developments in the law.  There could be a long time between Court decisions.  There could be intervening statutes or judicial decisions.

2.     Upholding a precedent could create incoherence and inconsistency in the law.

3.     A precedent might become inconsistent with the larger society’s sense of justice.


The second reason is a way that you could argue that Flood is wrongly decided.


Baseball is a business!  Players weren’t free to sell the fruits of their labors in other markets.


We’re almost at the halfway point of the course.  Until last week, we had been looking a lot at the legislative process, including specific aspects that we thought might be unfair or corrupt.  Now we’re getting into statutory interpretation.


Statutory interpretation


Theory will affect this!  But there’s also a practical component.  You can’t be a good lawyer in the 21st century without knowing how to interpret inconclusive statutory language.


When you move up the funnel, the most concrete stuff is at the bottom while the most abstract stuff is at the top.



Each of the five levels has some strengths and each has some weaknesses.  We will apply each of the five levels for the next eight weeks.


“Read the statute!  Read the statute!  Read the statute!”


Never lose sight of the words of the statute!  This is the first level of the funnel of abstraction.  The major justification of this is that the text is what is enacted.  The subjective intentions of the legislators is not enacted.


Everybody who wants to can look at the U.S. Code.  Plus, the plain meaning approach is supported by considerations of notice and other stuff.


The legislative process contributes to imprecision in many respects.  How does the legislative process make language blurrier, less precise?  Congress sometimes equivocates for political reasons.  Language enacted in 1960 might be less precise in 1980.


“No vehicles in the park” means something different in 1870 than it does in 1970.


The legislators might be careless!  The legislative process is pressured.  Not everything is fully vetted.  Maybe nobody thinks a certain issue will every turn out to be important and so they don’t give it as much attention.


Then we come to the second level: legislative intent.  The court is considered a partner in the process.  But we might worry that the courts encourage the legislature to engage in strategic behavior.  If you have a public choice view of the legislature, you can talk a more “schoolmarmish” view as the judiciary and make the legislature act like “grown-ups”.  That’s the tension between an intentionalist and a textualist approach.


Then there is imaginative reconstruction.  Sometimes a statute doesn’t resolve a case or controversy.  The court’s appropriate role in that case is to ask what the legislature probably would have done if forced to decide the issue before it.  You’re trying to put thoughts in the mind of a legislature.  But whose views should we reconstruct?  How do we know what the legislature in 1914 would have done?  Who else would we ask?  Would we ask the players?  Would we ask other companies or other organized interest groups?


How much historical foreshadowing do we put into the question?  Have would Congress felt about voluntary affirmative action in 1964?  How would we frame the question?  How precisely would we ask the question?  Do we put ourselves into the legislature’s shoes at the time given what they knew then?  Or, on the other hand, if Congress in 1964 could foresee that the color-blindness approach wouldn’t fix the problems that they were trying to fix, would it have been favorably disposed to voluntary affirmative action?


Hand and Posner have tried to be rigorous, but they realize that it’s complicated.


We will finish looking at the funnel tomorrow.  We’ll look at purpose and best answer, then look at the “10 O’Clock” statute.


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