Legislation Class Notes 2/20/04


These notes won’t be quite complete because I have to leave a little early today.


More on Holy Trinity


Some of the exemptions are for people who seem to be “mental laborers”.  So why would you need an exemption for some “brain toilers” if you didn’t intend that the statute would apply to any such people?  This seems to suggest that Congress had a bigger picture of labor than mere manual labor.


How might we use imaginative reconstructive to address the issue of whether pastors are covered or not?  What were they trying to do in passing this act?


If we were trying to decide whether to allow foreign pastors into this country, what would the legislature and interested parties have said?  Far from wanting to keep pastors out, we probably would have wanted them to bring them in.  We wanted to convert Catholics to Protestants.


When we imaginatively reconstruct a statute, we think about what both the members of the legislature and the interest groups (or interested groups) would have thought.


Brewer believes that the United States is a “Christian Nation”.  The current Supreme Court probably wouldn’t feel the same way to say the least.  It’s a big step from “we won’t exclude Christian ministers” to “we must let them in because we are a Christian nation”.


One lesson about the disagreement about Congress’s focus on the immigration act we were talking about before is that you can’t attribute omniscience to Congress.


Griffin v. Oceanic Contractors, Inc.


There’s this statute that authorizes the recovery of double damages for each day a seaman is not paid his wages.


The Supreme Court finds that the statute allows no judicial discretion and forces the court to award a lot of money to Griffin, almost to the point that it could have been a windfall.


The words “shall pay” are important.  These are construed as different from “may pay” or “should pay” or “will pay”.  “Shall” is a mandatory word, absent some qualifier elsewhere in the provision.


There is a concern that the plain language might conflict with purpose.  The respondent believes this act is primarily compensatory.  If that’s so, then if we give $300,000 for a $400 back pay claim, that ain’t compensatory.  Therefore, it is argued, a literal approach will fly in the face of the claimed purpose of the statute.


Rehnquist disagrees.  He believes that Congress has chosen to secure their compensatory purpose through arguably punitive means.


What is Rehnquist arguing?  Is he arguing that plain meaning should be used because when it is clear on its face it trumps everything else in the “funnel”?  Or should plain meaning be used because it furthers the “purpose” of the act?  Does Rehnquist use a “softer” form of plain meaning?  Does he suggest that something could trump plain meaning, but it just doesn’t here?  Scalia, Easterbrook, and others will take a harder-edged view of the plain meaning rule.  Rehnquist has cited to legislative history and is prepared to say that sometimes plain meaning can be trumped by other stuff.


What about the legislative history of this act?  Is this the same kind of legislative history that we were looking at in Holy Trinity?  No.  What Rehnquist is calling legislative history is the successive textual changes to the act.  It’s sort of “vertical” legislative history.  It’s what happened to the text over time.  He doesn’t look at committee reports or floor debates.  We tend to look at “horizontal” legislative history: we look at comment on a statute that is currently under consideration.  That’s what Holy Trinity was about.


So if you see courts talking about legislative history in jurisdictions were committee reports and floor debates and such are not recorded, they are probably talking about this sort of “vertical” legislative history.


There is no qualifier on “two days’ pay” and no qualifier on the period.  This is a change from previous versions.  There is no “up to”.


Does the Court think this is an absurd result?


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