Legislation
Class Notes
The dissents in Marshall
Cummings’s
dissent relies almost exclusively on two pieces of legislative history: a
technical correction on the part of Biden that passes the Senate but not the
house, and an amendment proposed by Kennedy to clarify the mixture/substance
and carrier issue.
Does
this legislative history help us? It
shows that Congress was aware of the issue.
The fact that these legislative history items exist tend to show,
according to this judge, that the majority is wrong in including the weight of
the carrier. But is that really true? This might actually be helpful to the majority
because these clarifications and amendments were brought up, but were defeated. There was conscious dialogue about the issue,
but they decided not to change the law. This legislative history is not reliable.
Posner
posits three strange consequences of the statute. But does Posner have a response to
Easterbrook’s argument about the structure of the statute? What does Posner think that Congress was
trying to do? He was looking at all the
different drugs in terms of number of doses.
His argument is that we should divine Congress’s intent. He says that there is some rationality if we
just look for it. Congress, he claims,
is trying to punish people on the basis of number of doses. It’s just that they didn’t realize that LSD
is sold with a much heavier carrier than other drugs. When you take away the carrier, the sentences
are consistent. Posner thinks they
should take away an obvious, inadvertent mistake in order to protect the true
intent of Congress.
Should
courts be allowed or encouraged to rewrite statutes? Posner wants to correct legislatively enacted
language. Posner thinks that they meant
something different than what the president signed. From Easterbrook and the majority’s point of
view, this is unnecessary. Part of what
Posner is arguing for is the Rule of Lenity.
Green v. Bock
Laundry Machine Company
The
petitioner reached into a large dryer and had his arm torn off. At trial, he testified that he’d been
improperly instructed on how to operate the machine. His credibility was impeached by his previous
crimes. But Green wants to argue that
this violates Federal Rule of Evidence 609(a).
But on the plain language, it seems that the benefit only goes to the
civil defendant, not the civil plaintiff. It doesn’t make sense why a civil plaintiff
but not a civil defendant should be subject to the risk of prejudice from
having committed a felony in the past.
What
are the choices that the majority sees for unpacking the word “defendant”? Defendant might only mean the defendant in a criminal
case. On the other hand, it could apply
to all witnesses, civil and criminal.
There are two different approaches how to resolve this reaching the same
result.
Which
aspects of the “Funnel of Abstraction” is Stevens using here? He looks at legislative purpose and specific legislative
intent.
What
was the common law rule? A felon was not
competent to testify as a witness at all!
Later, they could testify, but they could also be impeached. Initially, they could automatically be
impeached. That is seen as too
harsh. Then they changed it so you can’t
use just any felony conviction to impeach someone testified at a trial. Instead, you could only use convictions for
things related to dishonesty. There are
some crimes that don’t go to the
witness’s truthfulness. Some violent
acts may have nothing to do with your ability or willingness to tell the truth.
But
none of this common law stuff is in the legislative history of the Federal
Rules! Why are pre-1971 developments
relevant to this case? Part of it has to
do with purpose. What mischief is Congress
seeking to address? You have to dig deep
to find out where the problem came from and why people cared. The problem is: how do we deal with the issue
of felons if we’re not going to bar them from the courtroom?
Scalia
will retort that it’s silly to look at the ALI or
Senator
McClellan is a leading player, and his focus becomes the Senate’s focus.
If
we’re going to protect people by modifying the rule, we may argue that it
better be done explicitly. Who wanted civil witnesses protected? The House did, and their views were out on
the table. This is a major area of
disagreement where the House wants it and the Senate does not. But since the protection was not included in
the final rule, we can infer that the House lost! From Stevens’s point of view, there’s no
point in inventing a “mistake” theory.
Green
is trying to testify as a civil plaintiff about the product defects that led to
his arm being ripped off. Only his
testimony will give you any evidence of any probative value of what
happened. But if you let the jury know
that he is a convicted felon and in prison, the jury may well turn against him.
Scalia
would look to the textual meaning and figure out what is most compatible with
the surrounding body of law. We normally
assume that congressional meaning and ordinary meaning are fairly congruent.
Does
this “benign fiction” undermine Scalia’s attack on legislative history?