Legislation
Class Notes
Like
in Shine v. Sine, the Court’s decision
in Bock Laundry involved deciding
that a statute can’t or doesn’t 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
wasn’t unconstitutional?
Smith v. Wade
In
§ 1983 cases, courts will look to the common law of torts in the absence of any
specific statutory guidance. The Court
looks at § 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 Court’s 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
“benign fiction”! 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
didn’t 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
don’t want to dwell on arguments that were previously rejected by the Court.
Is
this a purposive decision? They’re
taking advantage of the fact that Congress left the act open to them to update
over time. They think that’s what Congress
wanted!
The canons of statutory
interpretation
What’s
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 can’t be manipulated
as much as legislative history. But this
hasn’t been empirically tested.
Tomorrow,
we’ll look at the rule of lenity, which says that statutes that have punitive
effects should be narrowly construed.
Could
A
lot of judges don’t really know these canons!
Can’t 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 shouldn’t be any tariffs, then you might say that any ambiguities
should be resolved against protectionism.