Legislation Class Notes 2/26/04


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 ABA or anybody else, because there’s no evidence that Congress looked at those authorities.  But Stevens said that this statute would never be made unless there was an underlying common law problem or evil to address.


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?


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