Legislation Class Notes 2/25/04


Last Friday, we noted that a number of states passed laws in the 19th century saying that juries should be selected from a list of qualified voters.


What do you do with the purpose analysis?  What did society want?  Did they want to know who they could tap as jurors?  Do we let the list expand?


What’s the legislative purpose?  What’s the best answer?  It came out both ways.  How do the different models point in different directions?


United States v. Marshall


Four drug dealers are sentenced to mandatory minimum prison terms of between 5-10 years for selling LSD based on the weight of what they sold.  The appeal is only about their sentences, not their culpability.  Read the statute!


How do we evaluate the quantities of controlled substances?  How do we define “mixtures” and “substances”?


The issue in this case is whether the statute requires the carrier medium to be included in the weight required to get to the weight necessary to get to the minimum sentence.


Easterbrook starts by conceding that including the weight of the carrier creates the possibility of some unusual results because the pure drug weighs almost nothing (this is what Posner will say later).  How does Easterbrook deflect this concern in real world terms?  He thinks that it might not be as bizarre as Posner thinks it is because drugs other than LSD are diluted at similar rates.  Heroin is usually only 2-3% pure when sold on the street.  Easterbrook wants us to know that he is sensitive to the potentially bizarre implications of how this sentencing scheme will be carried out before he engages in a bloodless textual analysis.


Easterbrook says if the results of textual analysis look absurd, people start to think that it’s time to get away from the text.  So before Easterbrook goes off on his textual analysis, he wants to argue that the result is not actually absurd.


Just what does the text say?  Easterbrook says that the words of § 841 can’t be made to apply only to the weight of the drug.  What’s the significance of the phrase “detectable amount”?  “Detectable”, according to Easterbrook, must mean “detectable inside of something else”.  What about the word “mixture”?  Should you consult a dictionary when you look at “ordinary meaning”?


What does “ordinary usage” mean to Easterbrook?  It means the average understanding of the “average person” like you or me.  How is that different from a congressional definition or a chemistry definition or a dictionary definition?  The “ordinary meaning approach” is kind of resonant.  But just what is that approach?  A chemist would have a different understanding of “mixture” than a regular person, and also maybe different from a legislator.


Should we expect that if we look at a dictionary that the terms will be roughly comparable?  There may be potential confusion.  You hope for convergence, but there might not be.


Should we look at how a chemist approaches detection?  Can we potentially make an argument about notice based on due process?


Would a textualist want to look at a definition at the time the statute is enacted?


This is an area where the textualist approach and the best answer approach are not too far apart.  What is the most sensible way to look at law?  You want it to govern people, especially in the criminal area, in a way that people can understand, especially when it comes to giving notice.


Just what dictionary do we use?  Or do we want to look at lots of dictionaries?  (Muted trumpet going: wha wha wha wha.)


Dictionaries play a role here.  These are questions that judges almost never ask.  When the Supreme Court relies on dictionaries, you’ll find absolute chaos in terms of just what they are relying on.  Some scholarly articles argue that the only thing that seems predictable is that you can always find dictionary definitions to support the position that you want to come to anyway.


We’re using dictionaries as a proxy for “ordinary meaning”.  If we really need to, maybe we just look at as many dictionaries as possible.  If there are conflicts, then maybe we don’t rely on dictionaries as much.


The same amount of LSD might get you 10 years if it’s in a mixture, but not 10 years if it’s in a substance.  It seems weird to think that Congress would have intended such disparate results.


Is there another, stronger textualist dimension to this opinion that goes beyond words alone?  What does Easterbrook do beyond looking at the meaning of individual words?  He looks at the statute as a whole and the structure of the provision.


The last bit from Easterbrook’s point of view is that there may be a constitutional problem.  We’ll spend more time later on the canon of avoiding constitutional problems and the rule of lenity.


Tomorrow, we’ll study the two dissents a little bit.


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