Legislation Class Notes 3/3/04


More on Jacob


What is the relevance of the political realities of the time to the Court of Appeals of New York?  The New York legislature had blocked passage of bills prohibiting discrimination against lesbian and gay parents.  Could there be some problems with the way the court interpreted the statute given the policy expressed by the legislature?  Is the court usurping the policy-making role here?


Can you justify the majority opinion as an effort to engage in purposive interpretation?  What is Judge Kaye trying to do?  Is the judge trying to protect the best interests of the child?  Those are the basic purposes of any adoption law.  You don’t have to appeal to a particular subsection of a statute to make this argument.  Kaye may be saying that there is a pretty patchy statutory scheme that is not in harmony, but clearly has one purpose: to do good for kids.  Kaye wants to harmonize the “slivers” of law and construe the statute to avoid discriminatory results.  This opinion may be rehabilitated in purposive terms.  We may not like having the court rewrite the text based on its values.


When you look at the legislative background in New York, it’s hard to argue that Kaye didn’t know what was going on.  But Kaye looks at “best interests of the child” as an anchor to try to harmonize conflicting provisions.


Li v. Yellow Cab of California


This is an old statute like 42 U.S.C. § 1983, which we’ll look at in Smith v. Wade.  Because the statute is old, we want to ask whether the statute means something different today than when it was written.  Shall the California Supreme Court invalidate contributory negligence and replace it with comparative negligence?  In California, contributory negligence is actually part of state statues.  So can the court really do this?  Does the legislature have to abolish contributory negligence and replace it with comparative negligence?  If they meant to do that, would they or wouldn’t they have done it already?


In Moragne, Harlan updated the common law of admiralty.  But in this case, the court is trying to update a statute.  The court is not free to decide that “this is not a good policy, so let’s just change it”.  Why can they do it in this case?


The language is: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.”


The 1872 California Civil Code was never changed up to the date of the Li decision.  What if the language in the Code was reenacted as the “Tort Reform Act of 2003”?  Is there anything in the language that invites you to conclude that it’s not contributory negligence?  Part of it would be the fact that the title includes the word “reform”.  Also, there is language in the statute that sounds “proportional”, which in turn sounds like the “more or less” rule of comparative negligence.


The court here starts from the proposition that in 1872 people thought they were enacting contributory negligence.  But if we started with the plain meaning of this language, you could read it as comparative negligence if you wanted to!


Ultimately, the court relies neither on the text nor the legislative history.  They rely on “emerging concepts” in tort law from other jurisdictions.  They conclude that the legislature in the past didn’t want to keep the judicial system from evolving.


What theory of interpretation is being used here?  It’s more of a purposive or best answer approach.  It’s quite liberal.  They make a broad claim about legislative purpose.  It’s more legitimate to couch the decision in legislative purpose terms rather than best answer terms.  The former is more respectful to the power of the legislature.


Dynamic interpretation is closely related to the best answer approach.


Shine v. Shine


How much can you do to correct legislative mistakes or simple lack of foresight?


The set of facts is complicated, according to Brudney.  I didn’t think it was that complicated.


Shine and Shine separate in 1972.  They divide their property without making a support agreement.  Later, the plaintiff sues the defendant seeking separate maintenance.  The court orders the defendant to pay $250/month in 1973.  This is the key monetary resolution between them.  This is a maintenance order arising out of a separation.  Later, there is a divorce decree with no support.  Later, in 1982, the plaintiff sues for arrears on the support payments.  But the defendant was bankrupt, and, as we’ll see, the statute was all screwed up in 1982!


The plaintiff brings a lawsuit for declaratory judgment that the support payments are nondischargeable (that is, the payments still must be paid despite the bankruptcy).  There is no separation agreement.  That’s what the statute seems to require.  How do we get around that apparent plain meaning problem?


The court refers to two conflicting public policies in this area: first, bankruptcy rules are to be construed in favor of the debtor in order to help the debtor get back on his feet.  But on the other hand, we generally won’t let bankrupt people off the hook from alimony and child support.  That’s not exactly a bankruptcy law policy.  Why do we care about those particular debts as opposed to commercial debts?  These debts are “inherent obligations”.  Society is organized in the family unit.  We have bankruptcy law, and we have family law.  These two bodies of law are at odds in this case!  We want to protect families and kids!


How was this statutory provision originally understood?  What’s the common law background that informs how we understand marital payments?  Alimony was considered a duty rather than a debt.  In Wetmore, the Court declared that this was the rule all along at common law.


Traditionally, property settlements were dischargeable in bankruptcy while periodic support payments were not dischargeable in bankruptcy.  In 1970, the law was changed to recognize the benefits of recognizing property settlements that were protected against discharge.


In the court’s view, did the Commission on Bankruptcy Law intend to shrink or expand traditional protection for families in 1978?  They intended to broaden such protection!  They were trying to expand the universe of nondischargeable support debts beyond periodic payments.  Since Congress is taking its marching orders from the Commission, we figure Congress couldn’t have meant to constrain protection either.


The court also says that the statute was passed in a hurry.  The court concludes that Congress couldn’t have meant what it said.  On the face of the language, this debt is dischargeable because it didn’t come to pass as part of a settlement agreement or divorce decree.


There is one more piece of the puzzle: the bankruptcy laws are amended again in 1984 to include exactly the kind of agreement at issue in Shine.  Was the 1984 statute prospective or retroactive?  It was explicitly prospective.  Well, what’s the effect of that?  The 1984 statute became effective for cases filed 90 days after its enactment.  Does this show intent on the part of Congress not to fix their purported earlier screw-up?


What is the court saying about the 1984 language?  They say that just because this law is explicitly prospective, it doesn’t mean that the law was any different before.  The court urges us to compare this to Wetmore.  The court says that the 1984 amendment simply carries forward the “true meaning” that the statute had all along.  Do we buy this?  Does the 1984 amendment make it easier or harder to support the court’s result in this case?  If Congress was just doing “housekeeping”, wouldn’t they have said so?


Is there some rational basis for Congress to decide in 1978 to limit nondischargeability?  Could Congress be trying to reduce post-marital “vitriol”?  Maybe under some conditions there has been a meeting of the minds (an agreement) that should be enforced, as opposed to an order imposed from without.


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