Legislation
Class Notes
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More on the funnel of
abstraction
We’re
done the first three levels of the funnel: plain
meaning analysis, legislative intent,
and imaginative reconstruction.
Next
up is the attribution of legislative
purpose. Unlike the text provides a
definitive answer, the court should interpret the statute in such a way as to
further its purpose. This is sort of the
“mischief” rule. If the common law didn’t
work to cure some evil and thus a statute was put into effect, the court should
interpret the statute to continue to fight that evil.
This
is more than imaginative reconstruction.
Hart and Sacks assumed that the legislature was made up of reasonable
persons, and so the court should go beyond the cynical and short term positions
of reasonable actors, but instead weave the statute into the overall fabric of
the law.
From
an empirical point of view, are there any problems with this description of the
legislative process? Do we have any
reason to think that legislators are or are not the way Hart and Sacks describe
them as being? How do legislators
function as legislators? Hart and Sacks
believed that the collective product of the legislature was rational.
There
are problems with this motivational analysis.
Sometimes people pursue public policy, but sometimes they pursue party
discipline, donations, or some other kind of strategic behavior. The descriptive accuracy of the Hart and
Sacks approach has thus been questioned.
Should courts be engaged in the
activity of assuming or ascribing a purpose to what legislatures do? Something must go on beyond textual analysis
a lot of the time. What’s the risk in
letting the courts ascribe a purpose to the legislature? The court might impose their
own values on unclear text.
Hart
and Sacks seem consistent with norms that try to get to predictability in statutory
interpretation. We generally want a set
of rules that will apply the same way to every case.
How
about the best answer theory? This is expounded principally by Professor Dworkin and by Eskridge (though not Frickey). The court is thought to act in a “common law”
fashion in order to make the statute “the best it can possibly be”. If the metaphor for imaginative
reconstruction is “archeological exploration”, one metaphor for best answer is “the
chain novel”. The court writes the next
chapter, and it acknowledges that it is responsible for taking over and
asserting its supremacy. Judges may tend
to use this approach more than they
will admit they use it.
If
each particular judge gets to choose the best answer, we may abandon any
pretense of predictability.
So
how do we put this together? These five
approaches may be seen as mutually exclusive.
For example, if plain meaning works, maybe we could just use that. On the other hand, most judges see these
techniques as cumulative, where you start at the “bottom” and then work your
way “up” the funnel. The funnel is
supposed to suggest an order of priority.
If the words of a statute are clear, it will probably govern your
interpretation, with some exceptions.
There is a strong presumption that the plain meaning, when it is clear,
will win out.
Similarly,
if you look at the words alone versus intent, the words win out. If you have clear intent versus imaginative
reconstruction, the clear intent wins out, and so on. Regrettably, none of these elements ever
comes to you in pure, clear, and unambiguous form. So as an attorney you have to sift through.
The drug store ordinance
“All
drug shops shall be closed at
Does
this statute tell us when drug stores may be open or closed? Could the drug store close at
Can
we look at intent? Local legislation is
less likely than federal legislation to have a thorough record of legislative
intent. Many states don’t keep legislative
history, period.
How
about the “evil the statute is aimed at”?
What is it about drug stores that might be bad that we want to prevent
in 1915? Why would we have this statute? It could have been that the drug stores sold
alcohol or other intoxicating substances that the legislature didn’t want sold
after
If
the pharmacist gets an emergency call at
One
consequence of this type of analysis is whether we should invalidate the statute
because of all the confusion that’s been caused. Should we strike it down and then let the legislature
give it another shot? Or should we try
to help the legislature by upholding the statute and its purpose?
Rector,
Sometimes
a statutory purpose can be broader than plain meaning, and sometimes it can be
narrower. What’s the thrust of the statute
in this case? We’re dealing with immigration. Most immigration laws try to exclude
people. Which reading of the statute
excludes more people: a pure language based reading, or a purpose based
reading? This is a case where the
language covers more ground than the purpose seems to suggest. This is the opposite of the typical case!
The
point is that this could go either way and there may be conflicting
purposes. There isn’t always just one
purpose to a statute.
The
church contracts with an English pastor.
The
The
court rejects the plain meaning approach.
When is it permissible to do so?
The court is saying that we’ll go with the more abstract approaches
rather than the most concrete approach. But why? What is the court’s
test for abandoning the plain meaning technique? The court is concerned with the possible
criticism that they are trying to usurp the power of the legislature.
The
test is:
1. Consider the whole legislation.
2. Consider the circumstances
surrounding its enactment.
3. Consider the absurd results
which follow from giving broad meaning to the words.
When
a statute is enacted, it has a Public Law number, and it gets published in the Statutes
at Large. At the end of each session,
the new laws also get incorporated into the U.S. Code. The Code has 50 Titles, organized by subject
matter. If you’re trying to interpret a federal
statute, a good place to start is the U.S.C.A.
Do
we have a definition of the term “labor” in the statute at hand? There are some dictionary definitions. The primary definition relates to physical labor rather than intellectual work. But both are listed.
We
don’t yet have the certainty that we would like to have. So what was the mischief that Congress wanted
to address? They were concerned about
the importation of cheap labor that was undercutting the wages of domestic blue
collar workers.
What
if a reaper manufacturer wanted to import skilled German laborers at the going
What
does the legislative history say? It
says partly that they considered adding the word “manual” to “labor”, but they
assumed that it would be construed this way.
But on the other hand, they never
did fix the problem. Doesn’t that
show some kind of contrary intent? Does
it show that we shouldn’t be giving exemptions to pastors?
Should
the failure to fix or clarify something in committee be regarded as inherently
suspicious? We may be concerned about
same gamesmanship with the committee report.
The
casebook authors tell us that there was some legislative history that this court
missed that has to do with excluding “mental laborers” from the scope of this legislation. The concern is that Congress will not have
sufficient incentive to put all the law into the statute if the courts treat committee
reports as just as important as statutory language.
Could
there be another reason why pastors are not specifically mentioned? How do people come over to this country when
they are in a troupe of artists? It’s high profile and high visibility. We want those people to get into this country
because they’re entertaining us. Maybe
it never occurred to anyone to consider individual pastors coming over to
preach at an individual church. The statute
dealt not just with manual labor, but with contracts for manual labor. Congress was concerned that people were being
brought over as what amounted to “owned labor”.
Restrictions were never imposed on so-called “immigration by worthy
foreigners”. But then why not amend the statute
to make that clear? It might be very difficult
to draft something that’s consistent with that concept.