Legislation Class Notes 2/19/04


Brudney hires research assistants.  If you’re interested, let him know soon.  He usually hires one or two people.  If you have questions about the process, e-mail him.


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 10 PM on each and every day of the week.”


Does this statute tell us when drug stores may be open or closed?  Could the drug store close at 10 PM and then open at 10:01 PM?  Do they have to stay open until 10 PM every night?  The latter might be a reasonable interpretation of “shall be closed at 10 PM”.


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 10 PM.  Maybe we don’t want teenagers hanging out at the soda fountain at the drug store after 10 PM.  Maybe we want to prevent robbery.  Maybe local pharmacies can’t afford to stay open as late as chains and the legislature wanted to protect the local store.  Maybe they didn’t want the pharmacists to have to work too late (employee protection).  There are lots and lots of these!


If the pharmacist gets an emergency call at 11 PM at night, which evils would still allow us to open the place up again?  For the most part, we don’t want someone who needs an emergency prescription to be deprived.  But maybe if we’re protecting workers, then we think it’s just tough.


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, Holy Trinity Church v. United States


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 United States contends that this violates the statute in question.  The statute has some particular exceptions that do not include pastors.


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 U.S. rate?  In a “mischief” approach, we think that they’re talking about “ignorant and servile” laborers.  Skilled laborers don’t seem to be covered on the face of the mischief analysis.


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.


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