Legislation Class Notes 3/4/04


Like in Shine v. Sine, the Courtís decision in Bock Laundry involved deciding that a statute canít or doesnít mean what it says.But Shine is a tougher case because the language is not absurd and certainly not unconstitutional.Why would the Court correct a statute that wasnít unconstitutional?


Smith v. Wade


In ß 1983 cases, courts will look to the common law of torts in the absence of any specific statutory guidance.The Court looks at ß 1983 in light of what was meant when it was enacted.They feel that the legislature at the time (1871) was familiar with the common law of torts at the time.Can we conclude that Congress was borrowing from common law at the time?But why not look at a dictionary?Why is this a legitimate thing to look at, from the Courtís point of view?


Congress is mostly made up of lawyers.They are legislating on the basis of law.But do the lawyers really remember the law?Can we implicitly assume that all lawyers must be held to some standard of knowledge of the common law?That would be another ďbenign fictionĒ!But the Court imputes a knowledge of the common law to Congress!


Why are common law developments a century after Congress acted appropriate reference points for the interpretation of this act?The thing is that the statute itself is very broad.You need the common law to interpret the statute as far as determining punitive damages.Some of these statutes were drafted with dynamic interpretation in mind!Gasp!What would Scalia say?


Why didnít Rehnquist focus on the statutory language at the beginning?Why did he wait until the end?The thing is that if he had obeyed the statutory language it would overturn zillions of Supreme Court decisions.Rehnquist is good at planting seeds within the jurisprudence of the Court.But you donít want to dwell on arguments that were previously rejected by the Court.


Is this a purposive decision?Theyíre taking advantage of the fact that Congress left the act open to them to update over time.They think thatís what Congress wanted!


The canons of statutory interpretation


Whatís the practical payoff of these canons?They are some of the most important tools used by legal advocates.These doctrines are enjoying a renaissance with this Supreme Court!What are the justifications for judges using these canons?


Scalia makes strong arguments that these canons are preferable to legislative history.How come?Legislative history is more ambiguous.Canons may be flexible, but it is argued that they canít be manipulated as much as legislative history.But this hasnít been empirically tested.


Tomorrow, weíll look at the rule of lenity, which says that statutes that have punitive effects should be narrowly construed.Could Ohio pass a law that says the rule of lenity is null and void?Can states force judges to abandon certain canons?


A lot of judges donít really know these canons!Canít you pick and choose from all the canons?Canons can cut both ways!


Think about Holy Trinity.Think about all the exceptions!What if we applied a canon to the list of exceptions!


What about deciding whether a tomato is a fruit or a vegetable?What is a plausible organizing purpose for the statute?Why did Congress make such a distinction?Maybe they were trying to do the whole protectionist thing.Yes!They were trying to protect the domestic vegetable industry from imports.


Who is hurt if you put tariffs on vegetables?Well, foreign vegetable growers, but also, arguably, consumers of vegetables.Plus, this statute was probably drafted by a special interest: domestic vegetable growers!Purpose and best answer might not get you to the same place if you believe that this was a protectionist piece of legislation rather than a public health piece of legislation.If you take a best answer approach and you argue that there shouldnít be any tariffs, then you might say that any ambiguities should be resolved against protectionism.


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