Legislation
Class Notes
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.
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 “