Legislation Class Notes 3/12/04


More on Gregory v. Ashcroft


Why are appointed judges non-employees under § 630(f) of the ADEA?  What about the canons of avoiding irrational or unconstitutional results?  Couldn’t elected judges be unseated by the voters?  So isn’t it irrational to treat appointed judges differently?  Could this fail the rational basis test?  Only a possible or fairly reasonable unconstitutional interpretation of a statute could cause the Court to want to change the statute.


We’re talking about the super strong clear statement rule.  If the balance between federal and state power is going to be altered by statute, that statute must be extremely clearly stated.


Garcia says that the states don’t need any extra judicial protection under the Tenth Amendment.  The present case was heard at a time when Garcia was still good law.


Do we have a Tenth Amendment problem in this case?  Five years earlier, the Court said that the political process resolves all issues of dual sovereignty.  Now the Court is creating a canon application whether a constitutional problem could have been created, so it must be avoided.


The Court is trying to do something without having to overrule Garcia.


Debunking and defending the canons


Where are we?  It would be easy to take Llewellyn’s table and say that canons should be completely debunked.  But canons influence the development of a law.  Judges rarely decide cases solely on language canons.  But why do judges rely on such canons?  Do canons effectively constrain judges?  Judges like them and use them.  Maybe the canons are a kind of a “checklist” to stimulate reflection on the meaning of words.


Public choice theorists have a different take on this.  They believe that judges have policy preferences even if they couch them in more principled terms.  Canons come into play when judges don’t have a clear point of view.  Why might they not have a clear point of view?  Maybe the case isn’t in one of their areas of expertise.  If the courts are construing statutes on very different subjects, the canons can relieve them of the need to get detailed knowledge of such subjects.


If you don’t know exactly what Congress meant, you give Congress the chance to speak again.  For example, Brudney found that canons were used very frequently in ERISA cases where the language was very complicated.  When using canons, are you just masking the fact that you don’t know what you’re talking about?


The canon debate reflects a tension between law and politics or the perception of law and politics.  Are canons just easy recourse to things that “look law-like”?


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