Legislation Class Notes 3/31/04


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 Missouri v. Jenkins?  It’s a 1989 Supreme Court case that says § 1988 allows separately billed paralegal and law clerk time as part of attorney’s fees.  How does he distinguish the holding of that case from the holding here?  Scalia is looking at ordinary past practice that attorneys are engaged in.  Part of Scalia’s argument is that we understood what we were doing there because when attorneys bill their client, they include costs for their own employees.  But Scalia says that that’s never been true for expert fees because experts are outside contractors who must be separately identified.


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.


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