Legislation Class Notes 4/1/04


What about Stevens?


How is Stevens’s approach different in terms of interpreting the term “reasonable attorney’s fees”?  Stevens wants to look at the text of the statute and past legislative history.  Scalia has done this “horizontally”, and Stevens wants to do it “vertically”.  Stevens’s interpretation stresses Congress’s intent to shift fees like it did pre-Alyeska.  But is this the same Congress?  The law was passed in 1976, and the other thing was in 1973.  It couldn’t possibly be the same Congress!  But does that matter?


Where did these things get cited in the committee report?  Stevens doesn’t elaborate, though he acknowledges that many of them were later reversed.  Stevens is putting a lot of weight of the fact that the committee report cites with approval all the cases cited by an earlier Judiciary Committee hearing.  But where are the cases cited?  This is Blue Blook stuff.  It’s only in a footnote!  It doesn’t seem like it’s necessarily very important.  It’s a string-cite in the footnote of a committee report!


Say you’re helping to draft the committee report.  What would you want to put in that discussion to make it more reliable?  You would want to elaborate the issue a little bit!  What else might you like to see?  Maybe we would like to see someone think about the cases?  If we saw the floor manager talking about the previous cases or talking about expert witnesses, we would feel more like it’s okay even though it’s not in the text.


Part of what the debate is about is whether there should be more separation of powers.


Here is something we’ve seen before, but I missed what it is.  Oh…extrinsic sources of evidence!  Let’s talk about that!  The problem with this approach is not for a garden variety case.  It’s when you get to an appellate court and people give competing arguments because they say that the text is unclear.  Legislative history reliance is not limited to any single school of statutory interpretation or any single view of how the legislature itself functions.  If we think about someone who views the legislative process from the standpoint of a transactional pluralist or imaginative reconstruction, what is the value to those people in aiding statutory interpretation?


What did the enacting coalition have in mind?  What was the deal?  What happened?  Why did they not put something in the text?  Why did they put something in the text?  What did the actors have in mind?  You could also be a Hart and Sacks legal process person.  Legislation may be public-regarding and not always an interest group deal.  For those who think of legislation as fundamentally a compromise among interest groups, which is what pluralists think, we have evidence of “where the body is buried”.  For those who believe they are acting for the good of the country, why do we look at legislative history?


Why would Scalia look at legislative history?  In Bock Laundry, he said that he would look at it to confirm that what seemed absurd on the face of the text was actually never contemplated by Congress.  He doesn’t want to deal with constitutional issue if it’s not necessary.  But here, he’s taking a view for the institution, which is sort of a soft plain meaning view: if the statute is ambiguous on its face, you might have to look at legislative history.


Leo Sheep Co. v. United States


The issue in this case is whether the government has an implied easement to build land across a road that was originally granted to the Union Pacific railroad.  When Congress granted land to the railroad, they granted easements to the even-numbered lots that they still owned.  It tells us that the case is really about money.  They might grant access, but they want to get paid for it.  Are there any exceptions to the checkerboard land-grant scheme?  We have land to which there were homestead claims.  Why is this relevant?  They thought about exceptions to some extent and didn’t include the right of easement.


What about the legislative history in this case?  Is there any reference to it?  Rehnquist doesn’t overuse it.  His view is that there is no evidence that Congress meant to create these easements.  They probably never thought about it.  They probably point in the opposite direction.  This is an 1862 act.  How are they treating it?  It’s an act to settle the West.  They couldn’t get private funding, so they needed to give incentive for the railroad to go west.  They said that they would give them the land if they built the railroad.  Rehnquist tells us that you need to look at the condition of the country when the acts were passed.  They were desperate to have a railroad built!  They wanted land in private lands, but they wanted to have a railroad near it, or no one would go!  No one anticipated national parks in 1862.


How do we interpret it today, knowing that over the last 120 years we have started protecting the environment, which we didn’t back then?  Is any of that helpful to the government in its argument?  How do we take the government’s growing interest in natural resource preservation and make a statutory argument?  When should we go against the general rule that we protect sovereign interests?  What about silence?


We’re going to do another checkerboard grant case later!


Committee reports


What about committee reports?  The tradition view is that they are relatively authoritative and they should be given great weight for two reasons: (1) they are regarded as the most coherent and thoughtful explanation of what’s in the bill because that’s who writes the bill, and (2) accessibility because this is an orderly and systematic format that is understandable to everybody.


But sometimes there is no committee report.  Sometimes the report is as ambiguous or incomplete as the statutory text that it is meant to explain.  Sometimes (but how often?) statements are smuggled into the report by lobbyists and lawyers for strategic reasons without the knowledge or agreement of the members of Congress.


Blanchard v. Bergeron


This is a § 1988 case.  Some say yes.  Others no.  YOU DECIDE!  The first question is: why?  The word “reasonable” is not self-explanatory here.  What is the Court’s initial reliance upon?  They invoke the Senate committee report that cites Johnson v. Georgia Highway Express, Inc. and some factors they look at.  But there is a conflict.  More tomorrow.


Back to Class Notes