Legislation Class Notes 4/2/04


More on Blanchard v. Bergeron


Why does the majority doubt that Congress subscribed to that particular part of Johnson?Does the Court say that contingent fees are just a factor, or more than just a factor?There isnít any explicit reference to contingent fees being not a ceiling, but there are favorable references to several cases.None of the factors is targeted as being dispositive.


Scalia attacks committee reports!Does it matter what page something is written on?How noticeable is legislative history?Shorter reports are probably a better bet than tomes.Say we have a string cite instead of a parenthetical explanation.What if there was criticism of the majorityís citation of a certain case?Would that make the report more or less reliable?


Courts frequently cite cases without explanation as a shorthand way to inform litigants about the contents of some shorthand rule.Scalia says itís not the job of Congress to do that.Congress shouldnít abrogate its duty to the courts.But whatís the problem in concluding that Congress canít or wonít understand references to case law?Arenít you saying that theyíre dumb or inattentive?But Scalia isnít prepared to embrace that in other circumstances.Scalia imputes knowledge to them of canons of construction and stuff like that.


Armstrong and Dole are arguing about committee reports.


In re Sinclair


The Sinclairs file a Chapter 11 bankruptcy.They want to change to the new Chapter 12 for farmers.The district court and bankruptcy court refuse.They rely on ß 302(c)(1).According to Easterbrook, itís a conflict between the text and the conference managerís report.What differences are there between committee reports and conference reports?Are committee reports signed?


If you asked 100 senators, they might think they were voting on the statement of the managers because itís with the document thatís with the actual statutory text.The conference managerís report has a more prominent place than the committee report, so we might think to give it more weight.The counterargument is that these things happen very late in the session.Sometimes they are very shortly before an election.Thatís very typical because of the rhythm of the two-year legislative session.A statute is what is in the United States Code.Appellate court judges donít always get it right.


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