Legislation Class Notes 2/27/04


More on the “benign fiction”


Justice Scalia wants to assume that Congress was reasonable when they enacted what they did.  But is this use of “benign fictions” could be seen as undermining Scalia’s idea about the unreliability of legislative history?  Is Scalia a closet legislative historian?


Can legislative history ever be shown to be understood as a matter of fact by a majority of both houses?  Scalia denies this.  We don’t poll members to ask what they know about legislative history.  So as a matter of fact, the legislative history was not known to most of the voting members.


So where does the benign fiction come in?  Scalia assumes that legislators are reasonably attentive to how one statutory provision fits into the whole.  Brudney suggests that it’s not a huge step to assume that a similarly reasonable legislator would pay attention to legislative history and would study it critically (for example, given more weight to the opinion of the majority floor manager and less weight to the minority floor manager).


Can we indulge some benign fictions but not others?  Or are some fictions more benign than others?


Scalia makes several arguments for why legislative history shouldn’t be looked at.  The question isn’t whether legislative history trumps the text; it’s whether the legislative history has any probative value.  Everyone agrees that legislative history isn’t fully legitimate because it wasn’t voted on.  But not everyone agrees that legislative history is completely illegitimate.


But on the other hand, a bill is drafted by a committee before it goes to the floor.  Brudney seems to want to say that just because legislative history isn’t 100% legitimate doesn’t mean that we shouldn’t be able to squeeze out the 5% legitimacy therein.


Scalia really argues that legislative history is unreliable because there are incentives to act strategically.  Brudney wants to argue that this might not be true.  For example, he argues that staff members aren’t always scoundrels and can get fired for doing things that are too screwy.


Could we standardize statutory language by agreement?


Blackmun’s dissent in Bock Laundry


He’s concerned about taking away people’s rights.  How does he interpret the record in order to come to the result he wants?  He uses a classic Hart & Sacks purpose-centered approach.  The bill was intended to eliminate prejudice against any litigant.


They all agree that the text can’t mean what it says, but they have different ways of dealing with the problem.


Scalia wants to do the least “damage” to the text.  Scalia thinks that litigants don’t automatically need the same protection in civil cases that they do in criminal cases.  Plus, criminal defendants are mentioned in the conference report, while civil defendants are not.


Dynamic interpretation


After legal process and textualism, this is the third and final theoretical approach to statutory interpretation that we will consider.  This approach doesn’t consider statutes to be tied to the enacting legislature, but rather sees statutes as evolving over time.


Eskridge tries to reconcile the text with both legislative history and subsequent evolution.  He argues that courts engage in dynamic statutory interpretation far more often than they claim to.


In the Matter of Jacob


Here are two cases going to the Court of Appeals of New York and dealing with a cohabitating heterosexual couple and a cohabitating lesbian couple.


§ 110 says that a boyfriend and girlfriend or gay couple because neither one is a two parent married family or one parent alone.


The other thing is that § 117 says that an adoption extinguishes the parental rights of the natural parent.  This is because they want to protect adopted children against biological parents changing their minds.


The court argues that the legislators never anticipated the changes in social conditions that would allow for unmarried couples and gay couples to adopt.


The statute dates from the 1960s and 70s.  Social conditions have changed since then!  The court wants the statute to change to fit the social conditions.


Eskridge wants to tell us that dynamic statutory interpretation goes on more often than courts want to admit.


How can we rehabilitate this opinion a little bit?  This opinion doesn’t really satisfy the legislative purpose in New York.  It looks clever, but it looks like judicial policymaking.


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