Legislation
Class Notes
We
finished the canons before the break and now we’ll turn to…
Legislative history – West Virginia University v. Casey
This
decision provides an introduction and overview to the discussion we’ll have
over the next couple of weeks. The
Hospital wins its § 1983 action against the governor in regard to the federal
Medicaid statute. The trial court awards
a whole bunch of money for expert services, but the Court of Appeals says that
the money is limited to $30 per day.
What
are the three statutory “pillars” here?
What are the raw sources of authority?
There is § 1988, which says that the prevailing party can recover “reasonable
attorney fees” as part of its costs, and then a separate section that limits
recovery to $30 per day…but how do we know that we’re allowed to get “costs”? Where do “costs” come from? § 1920.
That section gives the judge the right to defer the costs for the fees
of witnesses. When we look at statutes
together, we want to fit their pieces together.
We have three different sections that fit together to give the
applicable law.
There
is also a Supreme Court case that bears on this: Crawford says what the law is for recovering witness fees unless Congress
has said something explicit that goes beyond it. Does § 1988 explicitly provide the authority
for attorney fees as part of costs? According
to Scalia, it does not.
This
is a relatively rare opportunity for Scalia to write for the majority on a statutory
interpretation manner. Scalia relies
heavily on the meanings of certain terms in other statutes. Which of his arguments are most persuasive,
and why? We have the TSCA, passed in the
same year by the same Congress. What else
was passed by the Congress that passed § 1988?
They passed the CPSA. They passed
the RCRA. All of these statutes seem to
indicate that attorney fees and experts’ fees were considered two different
things.
How
do we counter Scalia’s argument on textual lines? Well, these are big, complicated statutes,
and there’s only a little bit on attorney fees.
Also, different committees might have drafted different Acts, and those committees
might have had different ideas about attorney fees. The committees involved in Equal Access for
Justice is different than the committee that is involved with the
environment. There are two separate committees
involved!
We
have an attorney fee provision that is a small piece of two of the statutes and
we have statutes being drafted by different committees. Can we make an argument that might at least question
the apparent certainty of Scalia’s conclusion?
What can we say about the structure of how Congress operates? We impute to Congress a knowledge that it
might or might not have. When Congress
passes major environmental legislation, they probably aren’t thinking about the
details. What’s going on is that instead
of having the Whole Act Rule, we have the “one-Congress fiction”. That is, we pretend that Congress, when it
acts, intends to include or exclude just what it says. There are perfectly logical reasons why Congress
might not have mentioned expert fees.
They might not have been obsessed with these fees.
Does
Scalia allow any role for legislative
history? He says that the text is the best evidence of purpose, and if the
text is ambiguous you can look elsewhere.
But people can reasonably disagree about whether the text really is
ambiguous. It looks like Scalia is
taking a more moderate position in order to get a majority of the Court. Scalia almost always thinks that the legislative
history is totally worthless!
What
about
What
about the efficiency argument? How does
Posner counter? He says that using
paralegals and law clerks lowers the overall cost of attorneys’ services. Posner figured that if the Supreme Court didn’t
allow compensation for attorneys, then it would force lawyers to become experts
themselves. He thinks that can’t be what
Congress meant. But at least some of the
time, experts will actually be paid more than lawyers! That reinforces Scalia’s position that
because they are so expensive, it would make sense that Congress would provide
for them separately.
Posner
suggests that Congress must have meant to allow attorneys to collect under
costs all the specialized tasks that they’re not now doing. That’s a better general proposition for costs
that are much less expensive when they’re not done by attorneys.
Scalia
considers it unnecessary to consider the legislative history that Stevens trots
out. Is there a provision in the committee
report that suggests that Scalia may be reading the text too narrowly? What about floor statements? In whose favor do these statements cut? There are several places where at least two
senators seem to resonate with the view that people need the means to go to
court and be effective. You can’t be effective without being able to
bring the right resources to bear.
Matthias refers to the “staggering cost of litigation”.
How
significant should floor statements be in relation to committee reports? Are they more or less likely to be insincere? Who participates in the committee report who
doesn’t play a role in the floor statements?
Minority views are part of the committee report! But you can say anything you want in floor
statements.
Is
this “hot” or “cold” dialogue? Is this
going on live on the floor, or is this “dropped into the record”? “Hot” dialogue has the chance for discussion,
but there’s also the possibility for salesmanship that is absent with committee
reports. You don’t want your boss to do
something embarrassing on the floor because he or she didn’t understand what
the real issues were.
Assuming
that the committee reports had stated that citizens must be allowed to recover
all costs including expert fees, would that change Scalia’s analysis or conclusion? He would say that if it was on their mind but
then they decided not to put it into the final bill, then this is extra
significant. Scalia is deeply suspicious
of Congress. If Congress was very
explicit, it would seem that they meant for something to be there.