Legislation Outline – Done as it’s gonna be...use at your own (big) risk!!!  This one is pretty lame!!!


Table of Contents


Theories of legislation. 2

Pluralist theory. 2

Public choice theory. 2

Republican theory. 3

Campaign finance. 3

Contribution limits versus expenditure limits. 6

McCain-Feingold. 13

Soft money. 13

Electioneering communications. 14

Bribery. 16

Federal regulation of lobbying. 17

Federal Regulation of Lobbying Act 18

Lobbying Disclosure Act of 1995. 18

Legisprudence. 19

Stare decisis. 23

Statutory interpretation. 24

Textualism.. 30

Dynamic interpretation. 34

The rule of lenity. 38

The super-strong clear statement canon. 41

Debunking and defending the canons. 42

Legislative history. 42

Committee reports. 46

Interpretation in light of other statutes. 52

Administrative law and statutory interpretation. 53

Federal Funding Requirements for Election-Related Communications. 59

Federal Campaign Finance Law: New Contribution Limits. 60


Theories of legislation


Pluralist theory


Political outcomes are viewed as accommodations among interest groups.  There are both optimistic and pessimistic pluralists.


Those who think pluralism is good believe that we have a diverse society leading to interest group formation and in turn the dispersal of powers among the social, economic, and political fabric of our society.  Interest groups are frequently in conflict, and government is the arena where interest group conflict gets played out.  How can this be good from a public policy perspective?  It is argued that there is a “marketplace of ideas”, and if people peacefully compete to promote different ideas and public policy alternatives then it follows that the groups will successfully work out conflicts.  The suggestion is that we can resolve our argument if we get everyone at the table.


Why do some think pluralism is bad?  There are issues of whether interest groups are broad-based and representative.  Small groups of rich people will tend to be better organized and more powerful.  Better organized groups will win out over less well organized groups, and small groups tend to hold themselves together better.


Public choice theory


This is an economic approach to public institutions.  Public choice theories are pretty pessimistic about pluralism.  They believe interest groups are out to help themselves and not the public.  They believe “political goodies” are rationed according to wealth and power.


Say we have three groups of legislators who are trying to offer amendments that will resolve a controversy between A, B, and C.  Their preference rankings are (A, B, C); (B, C, A); and (C, A, B).  With this preference ordering, agenda-setting power (the order of the votes) and strategic voting based on superior information will carry the day.  This looks like game theory!  If you want to win, you better not be part of the first vote.  You’ll see this in the Senate: there will be some gamesmanship to assure that amendments get to the floor at their preferred time.  The point is that sometimes strategic voting leads to insincere voting.  I suspect the question is: how does this affect statutory interpretation in the courts?


The “ABC” model was meant to illustrate how one group of public choice theorists are critical of the deliberative process.  They believe it is incoherent.  Another group posits that the process isn’t irrational, but instead is part of a quite rational political market where votes are bought with money.  That’s a more cynical model about how legislation is bought and sold.  It’s based on the idea of the free rider.  People have the incentive to sit back and hope someone else will carry the burden of pushing through large, complex legislation.


This leads to the table at the top of p. 59.  There are four types of legislation depending on the concentration and distribution of costs and benefits.  When the costs are more concentrated, the opposition will be concentrated.  When the benefits are concentrated, the support will be concentrated.


Take for example farm subsides: a small number of agribusinesses are paid a lot of money to produce agricultural goods at an artificially high price.  Thus a small number of people care passionately while the large majority of people only see a small cost that they might not even notice.  If support and opposition are both concentrated, you’ll likely get gridlock.


The assumptions and reasoning behind this model are that legislators primarily care about reelection, that interest groups are the primary sources of information for legislators, and that interest groups participate in rent-seeking behavior (seeking benefit at the cost of others).


Are public choice theories complete?  Do they make sense?  Do politicians care about anything else besides getting reelected?  We might hope that they care about things other than getting reelected.  So how much does public choice implausibly “flatten” the motivations of legislators?


Some say there are three different sets of motives for legislators:  (1) Self-interest – If you want to help yourself, you’ll be on “pork” committees.  (2) Insider status/prestige – If you want prestige, you might join a committee like the Senate Finance Committee or the House Rules Committee.  (3) Actual interest in public policy – If you are really interested in public policy, you might join the Senate Foreign Affairs Committee, for example.  Some people might really care about things.


What about voters?  Do they vote out of pure self-interest?  What might their interests be besides getting money into their own pockets?  Voters may well be just as complicated as legislators.  What about the nature of the process itself?  Is the process relatively static and controlled by interest groups?  Are public choice theorists right?  What about the public at large?  Some interest groups have non-economic agendas.  We might hope that the process is not based on naked self-interest.


Kingdon takes an “organized anarchy” approach.  He thinks that policy outcomes depend on so-called “coupling of the streams”.  Things might get debated a whole lot, but then there might suddenly be a moment when you can pass a certain law when you couldn’t have before and you may not be able to later either.  Brudney thinks this may not fit the four-part model of costs and benefits.


Republican theory


This group believes that the deliberative process will actually improve the quality of legislation.  Who cares about this stuff outside of academia?  Judges write about statutory interpretation.  This is something that judges are willing to do because it’s methodological rather than ideological.


Campaign finance


The cost of legislative campaigns skyrocketed starting in the 1970s.  Some say that after Watergate, all parties used primaries instead of picking candidates over thin air.  TV ads are effective but expensive.  Incumbents have gained a bigger advantage.  The electorate can become familiar through C-SPAN and local news to find out what their incumbent is doing.  A challenger must spend a lot of money to tell voters who they are and what they stand for.  It’s not easy to get name recognition in a constituency beyond your own.


What do people worry about in terms of the effect of money on the legislative process?  Is the money equivalent to a bribe?  Are the contributions a quid pro quo for votes?  There is a concern about the appearance of impropriety.


Is legislative process the pursuit of the common good, or interest group deals?  Public good people tend to regard members as beneficent trustees who are thinking about the public good.  Pluralists are more tolerant of the campaign finance realities.  Do they see members as trustees, or something else?  What are they?  Constituents want their members to be agents to their policy priorities.


Campaign contributions are instructive to legislators as an agent.  But there’s also free speech, which is an anchor of the analysis.  There’s a First Amendment.  The Constitution is in the back of this book.


Can I send money?  Is that pure speech?  Does that communicate ideas?  Is it conduct?  Am I communicating that I really care?  It’s like having a megaphone.  It communicates more than ideas, but in furtherance of something, like a platform or ideas under the platform.


Before Buckley, you could argue that money isn’t speech directly, but rather the amplification of speech.  It’s indirect and entitled to constitutional protection, but not core, strong protection.  Money is like picketing or using a sound truck which has conduct aspects.  How much protection do we give money?  Do we give it the exact same protection that we give to speech?


Buckley v. Valeo  The decision is really important.  We must first have in mind three ways one can contribute to politics in this country:  To individuals, directly – 1974 election law placed a $1,000 ceiling.  Then the BCRA/McCain-Feingold raised the ceiling to $2,000 per election.  Every case we look at exists under the 1974 act.  The 1974 Act provides for different ways in which contributions can be regulated because there are different kinds of contributions.  One can contribute directly to a candidate or candidate’s campaign.  There is a $1,000 ceiling on these contributions.  The BCRA raised the ceiling to $2,000 per election (or $4,000 per election cycle).


You can also contribute to PACs, which are formed by corporations, interest groups, or issue groups.  GM can have a PAC.  A union can have a PAC.  There is a $5,000 per election ceiling on PAC contributions under the 1974 Act.  The PACs themselves can contribute $5,000 per election per candidate.


There is also soft money.  That is money that doesn’t directly benefit a specific campaign and isn’t spent in direct connection with such a campaign.  For example, a national “get out the vote drive” or a party.  No limits on soft money in the 1974 Act.  In the following decades, the national committee organizers were known to be able to raise millions in a single evening in soft money by having $10,000 a plate dinners in which people would make a soft money contribution, not going to a particular candidate.  That’s what BCRA was about.  It was aimed at turning off the “spigot” of soft money.  Under Title I of this new law, upheld by the Supreme Court last month, national political parties and their agents (state and local parties acting on behalf) barred from soliciting, receiving, spending soft money in elections.  BCRA has effected a radical landscape change.


Individual contribution limit $1,000 per election per candidate; this was upheld in Buckley.  They interfered with a First Amendment right.  The court found that the government interests were sufficiently compelling to justify the limitation.  What’s the compelling government interest that justifies the limit?


The government wants to prevent corruption.  They also want to prevent the appearance of corruption.  There is both actuality and appearance.


The Brady Bill was a hotly contested bill.  Say the NRA says to all Congress candidates that they won’t be given any money until they vote for or make clear that they’ll vote for repeal of the seven-day notice provision.  Several candidates issue press releases saying that they’ll repeal, and they start getting money.  Is this quid pro quo corruption?  In some sense, it “smells” like a bribe”.  Are the candidates just pledging to do that many voters want them to do?  Is it a quid pro quo?  Is it different to give money to reinforce views?


One way you know what public policies you stand for will be groups giving you a percentage positive voting record for a certain interest group.  The way they know that is that certain votes are identified as critical.  Money is part of the lubricant of representative democracy.


There is a tension between what we expect to understand by quid pro quo corruption (smacks of a bribe) and on the other hand it’s rarely the status quo is unknown.  Candidates usually have a track record and have a record of interest in public life.  Groups come to them.  You don’t go to a liberal Democrat if you’re a leading pro-life group.  You don’t go to a conservative politician if you’re a civil rights coalition.  Groups favor politicians who favor their views.


How do these contribution limits play out with respect to incumbents versus challengers?  Are incumbents more effective or less effective with contribution limits in place?  It would seem that contribution limits favor the incumbent.  The incumbent has “franking privileges” related to sending mail.  In any two-year House election cycle, the mail to constituents is far more frequent before an election than the rest of the cycle.  There’s a limit.  But people end up sending a lot of mail.  Constituents want to know what’s going on.  You don’t want to tell members that they can’t communicate with their constituents.


Not everything goes on in the public eye.  It might not be corruption, but it might be the appearance of corruption.  The casebook authors argue that if you only had a few large contributors you’d be free to act on all the issues that the large contributors don’t care about.  The casebook authors are naïve according to Brudney.  But corporations and PACs care about everything, according to Brudney.  Also, some think if you put together lots of contributions, you’ll get lots of people on both sides of every issue.  There is not agreement on how it plays out.


Contribution limits versus expenditure limits


What is or isn’t speech?  The Court struck down the expenditure limitation.  In Buckley, the court makes distinctions between expenditure limits and contribution limits.  That is fundamental.  What is it about contribution and the First Amendment?  Contribution is directed at a candidate.  What does that mean?  Is a contribution less expressive or more expressive?  The people giving money are voicing their opinion.


It’s not free of controversy, but the Court makes it a legal fulcrum that if you are contributing money it doesn’t implicate the core of the First Amendment.  If you give money to a candidate, it doesn’t matter how much money it is, you’ve given it to the candidate and the candidate is free to do whatever he or she wants with that money.  Once you’ve finished contributing, you’re not in control of what’s said or how it’s said.  The Court viewed expenditures as fundamentally different.  Own money, own political views.  Expenditure limits are a core limit on First Amendment rights; therefore, strict scrutiny must be met in order for them to be upheld.


The Court, in a variety of areas, when it decides that something that is fundamental to individual rights is being threatened, they say there must be a compelling governmental interest and narrowly tailored regulation that does only as much as is necessary to do to preserve that compelling interest.  The compelling interest must be preventing corruption, either in actuality or in appearance.  That’s the first thing the Court looks at in terms of expenditure limits.  These limits do not survive scrutiny.  Unlike contributions, which go to a particular candidate and therefore can be the perfect quid pro quo exchange, expenditures are made independent of any candidate.  Therefore, there is less quid pro quo danger.


Is this persuasive?  Say I spend my own money to make an ad urging people to vote Republican or a get-out-the-vote drive.  Less quid pro quo threat than if gave money to Republican candidate?  Will the candidate know if I spend money for get-out-the-vote drive?  Would I hide it if I did it?  What about disclosure issues?  I presumably have some interest in how the public will perceive my role if I spend significant amount of money on activities like political commercials for DeWine paid for by so and so Brudney and not the views of the College of Law.  Is there a big difference?  Does the public care?  Is this a distinction that matters?


What about a voter registration drive that will help them enormously?  The Supreme Court gradually wakes up to the fact that soft money expenditures are powerfully supportive of candidates just like candidate contributions.  That’s not where the Court is in 1976, though.


Corruption is not a compelling interest in Buckley for expenditure limitations.


There is another interest though: relative ability of groups to influence elections.  The Court’s judgment is that prevention of corruption is the sole possible justification for limiting political expenditures.  Equalization is absolutely unacceptable as a compelling interest in the opinion of the Court.  Why?


The Court said that unlike corruption, equalization runs against First Amendment rights.  Why is trying to promote equality of vote across the electorate incompatible with the First Amendment?  The Court says that promoting equality won’t work because you’ll never get to the point where everyone is equal.  There might be personal wealth on the part of the candidates.


But there’s a different reason.  Why is the Court so hostile to efforts to promote equality of voice?  The Court says that the First Amendment is only a negative restriction and not a positive pronouncement.  The First Amendment is about freedom, which we can regulate to stop restrictions on freedom, but we won’t enhance the freedom of some to make others equal.  This is a powerful statement by the Court, hotly debated since it was made.  It shaped the landscape.  If you’re not going to be allowed as a matter of Constitutional Law to promote those who have fewer resources to assure that the marketplace of ideas has rough equality of speakers or speaker intensity, then the fact that some are louder or richer becomes core protected First Amendment activity.  That’s a key message of Buckley.  That’s why you can’t compel equality of voice as a key governmental interest.


PACs barely existed in the early 1970’s, but grew in the late 1970’s to circumvent restrictions on contributions.  There were two kinds of PACs: first, preexisting organizations like corporations and unions with a separate economic purpose.  That separateness was due to the fact that Congress already required as early as 1907 that corporations couldn’t play a direct role in electoral politics, and neither could unions as of 1947.  You can’t pour out money into politicians’ hands.  Second, there are issue PACs.  They are formed as conduits for funds collected from people who care a lot about the agenda of the group.  The group is often only a group to express political views.  By contract, unions and corporations are not formed primarily to express certain views.  Issue PACs exist to express views that people who hope their opinions will become public policy.  Therefore expenditures are expended by PACs to individual issues.  PACs go bigger than individual in campaigns.  It is possible to say that PACs are another instance of corruption.  They could be a way in which oil industry PAC, auto industry PAC, ways to bundle money from corporations to increase pressure on political process.  There have been efforts to push level of PAC contributions down.  But on the other hand, you might like PACs.  How come?  Are they individuals who believe in policies?  NRA, GM, NEA?  Broaden and deepen political participation.  Bundle money from small contributions into big contributions.  Candidates begin to care more about views of PAC members.  Substantial spending by very wealthy as opposed to PACs help level playing field help express views.  They are more issue-oriented, also can say that even with some of the more suspect PAC efforts, generally PACs are less venal than individual contributors to the extent an individual is paying money, question is “what are they getting out of it economically?  Is it a payoff?”  PACs appear to promote policy.


Nixon v. Shrink Missouri Government PAC – This reaffirmed the Buckley reasoning.  The state of Missouri espoused the same views as Congress in 1974.  The majority assumes that the arguments are persuasive without proof.  Are Missouri’s limitations actually different in kind than something else according to Souter?  Distinguish between expenditure and contribution limitations.  What if contribution limits had been $10?  Does Souter suggest that there’s ever a point at which we could worry about contribution limits?


A state or Congress could place the limit so low that you wouldn’t be able to do that.  You couldn’t gain enough money yourself so that you could run a meaningful or effective campaign.  That’s not a problem here because there is evidence in the record that 97.6% of contributors gave small amounts of money.  If Missouri changes so much that people were trying to give big money, then low limit could be stifling.  Souter says nuh uh.


§ 441a(d) political parties can make expenditures “in connection with general election campaign of federal candidates”


(d)(3) Limit on coord. Exp is $20,000 or “2 cents times voting age population of State” (e.g. Colorado 5.15 million so $103,000)


We were talking yesterday about Nixon.  There has been considerable inflation since 1974.  The limits upheld in Buckley are now worth much less in real terms.  If it was indexed for inflation in the 1974 Act, the $1000 ceiling would be worth $1350 by 2001.  The BCRA at least acknowledged this reality and raised the contribution ceiling.


From a competitive standpoint, does upping contribution limit help incumbents or challengers more?  From an incumbent’s point of view, with a large number of repeat contributors, you can go back to them and they’ll probably give double the money all at once.  If they maxed out before, now maybe they’ll max out more.  What about challengers?  What might help them about this?  Who else is giving?  What’s the blend of contributions here?


Instinctively, it might help both.  Incumbents have predictable sources like party that will continue to support them.  They also have PACs and interest groups.  At least some of the time, challengers actually appreciate and benefit more from the bump up because wealthy individuals who are more autonomous you might be able to find more and get more money.


In a recent study of the 1996, 1998, 2000 elections, it was found that especially in the Senate, non-incumbents are more likely to benefit from upping contribution limits.  There were lots of maxed out contributions to non-incumbents found.  This disparity existed in the House too.  The push for a higher ceiling had come from member who thought they could get steady contributors to double maximum, but maybe also help challengers, maybe more than incumbents.  When there is a broader base to rely on, even for the House, not hitting people as hard or not same urgency to max out if reluctant as opposed to challengers, for whom it’s a must.  Incumbents raise more money than challengers.  The percentage of the maximum is different than the number of contributions.  Challengers will never equalize.


The most noteworthy aspect of Nixon v. Shrink Missouri is the separate concurrences.  Stevens argues that money is property, not speech.  He’s ready to overrule or explicitly limit Buckley.  Breyer and Ginsburg, on the other hand, want to protect process and limit money, interests of constitutional magnitude.  Strict scrutiny, therefore, may not be as appropriate if there are balancing constitutional interests.


Souter is the majority author.  He is skeptical about some aspects of Buckley.  In 2001 and 2002, a group emerged prepared to ask fundamental questions about the Buckley approach.  Rehnquist and O’Connor are not interested in overturning Buckley.  The dissenters actually want to revisit Buckley for a different reason because they want to ban all limits of both kinds.


The distinction is making people uncomfortable because it’s not easy to figure out how to parse things beyond individual donors.  Austin is the next chapter.  How are corporations treated?


Austin is a case about state regulation of its own campaigns but because Buckley has constitutionalized all these issues, saying First Amendment is implicated, the Supreme Court has refined its doctrine in the context of state regulation of its elections and not just federal regulation of their elections.


Kennedy, Scalia, and Thomas want to get rid of all contribution limits.  They think the Court made a big mistake.  Expenditures and contributions should be unlimited, according to them.  They don’t believe that contributions aren’t speech.  This is a big split in the Court.


Michigan has a statute that prohibits independent expenditures corporations elections.  What is independent expenditure?  What makes it independent?  Candidate doesn’t control it.  Not done under the control or direction of the candidate.  Michigan allows corporate political spending when done from segregated fund, like PAC.  Solicitation of individuals who contribute to PAC.  But no expenditures out of general treasury.  Can corporation use general treasury funds to advertise for particular candidate?  More money in general fund.  This is all about money.  Big piles of money in general treasury.  In PAC, just limited contributions (caps), limited resources.  Late in campaign, want TV buy that will be expensive, how many buys to make?  Want to move big piles of money quickly, hard to do with segregated fund.  This is the reality of politics.  If we read newspapers and stuff, Democrats running out of money etc.  These are hard judgments driven by money.


The Chamber of Commerce challenges the law on First Amendment grounds, and the Court upholds it as constitutional.  This is the first time that the Court upheld a statute regulating corporate expenditures.  What’s going on here?


In Buckley, Court relied on state interest of prohibiting quid pro quo corruption.  What about state of Michigan?  Or is the Court invoking this rationale?  No.  They differentiate between quid pro quo in Buckley and go for hard evidence instead that expenditures don’t reflect the support of the public whereas they just express the desires of a few investors and corporate heads?  Corruption?  No.  But, is there the appearance of corruption?  Unfair advantage in the political marketplace?  Different type of corruption?


“Corruption” is the mantra justifying limitations on freedom of speech.  There is no quid pro quo here, but Michigan sees a different danger.  What danger do corporations bring?  The Court refers to thing called “corrosive and distorting” effect.  What is corrosive and distorting if corporations use general treasury?  Handful of people deciding moving money into political process from economic process.  Distortion!  Money given for profit motive reasons but used for political reasons.  Corporations say we don’t spend money except if we think public policy will affect profit margin.  Corporations don’t spend on social issues.  Only profit motivated.  Kennedy and Scalia claim that the majority has revitalized the “enhancement theory”, what Buckley said we won’t do.  The majority doesn’t think it’s doing that.


Not just economics into political.  What else constitutes distortion?  If not equalization, then what is the Court worried about?  Are they worried that corporations shouldn’t be allowed to get away with this?  Or that corporations are using state privilege in unlawful ways?  But one piece of this in terms of why the treasury instead of a PAC is inappropriate.  Why is the corporate treasury the wrong way to do it?  PAC money comes from donors: individual people.  There may be a corporate culture where midlevel managers must give to PAC or no promotion, but it’s still individual corporate actors.  There will be disclosure to public about who donated and how much.  When a corporation ends up spending general treasury money, makes public think comes from aggregation of individuals, no reflects managers shifting bundles of money as if lots of small contributions.  Instead, investment decision.  Shouldn’t be part of political process.  Supposed to reflect individual knowable actors not lump sum payments from general treasury.


PACs bundle money from series of individual voices.  If want political playing to be effective, give to PAC.  If buy a car, I don’t want to be political player.  Decided as early as 1907 as inappro.  Reason why corp who can amass money and not be liable or lower tax is because not so you can be gorilla in every poli battle.


Austin described as Madisonian perspective on what corruption is.  Not only about buying/selling votes.  Due process of law too.  Democracy to function so public knows hear from individs or masses of indivs.  Organization pollute or subvert informed judgment as opposed to truly individual.


Power of ideas too persua?  Public unable to resist?  Bottling init?  Spending for refund bottles and bottling manuf spending $1.5 million, public votes against init.  Why?  Because they are persuaded?  Or because of money?  Rationally persuaded?  Money?  Reasons to vote one way or another?  We vote against it.  Is that corruption?  Tough question.  That’s where equalization and distortion don’t mesh well.


Appear of corrupt in Buckley appear votes individ candidates being quid pro quo bought.  Not what this is about.  Kennedy and Scalia are right that Court is changing direction to some extent.  Court says that process can be distorted by allowing so much wealth to go in that there’s message imbalance.  Not trading votes per se, public being duped due to so much money not adequately reflecting individual actors.


Prepared to allow corps to continue spending money through PACs and they may have a modestly disproportionate influence.  But if spend money through treasury, then public will think they get more message from individual actors instead of agg of wealth dumped in to conversation in a way that will necessarily distort.  This is a more sophisticated view than votes for money.  Disturb dissent, Court understand more complicated to sift through corrupt here.


Colorado Republican – We’ve been dealing so far with how much individuals can contribute and corps can contributes.  Now we deal with limits on parties.


Is this a strange case?  There have been so many cases about parties since then.  20 years after Buckley first time Court deals with limits on political parties.


FECA imposed $5000 limit on multi-candidate political committees, also known as PACs.  Or on its terms as imposing same limit on parties giving to candidates.  But party expenditure provision creates a general exception from the limit; allowing political parties to make general election campaign expenditure limit either $20,000 or 2 cents multiplied by the voting age population of state.


No candit when starting running ads?  Talk to any?  FEC presumption…need evidence of coordination.  Evidence matter that’s what’s going on.  Court in the case ducks question presented.  Everybody thought they were deciding whether limiting coordinated expenditures was constitutional.


Independent expenditure?  Deny to decide legal question upon which cert was granted.  Constitutional?  Don’t know yet.  Summary judgment?  Court says no disputed fact, as a matter of law we think no disputed facts, on this record, no coordination, so easy case at least in first form.  But we don’t only see first form.


Colorado Republican II – How much coordination had there been?  Had Calloway talked to candidates?  Frustration on both sides.  Can trace justices change over years.  They’ve been educated about poli process and changed views based on corruption much more complicated and law not doing what Congress wanted it to.  Who are we to second-guess?  Sometimes Court issues a narrow ruling that avoids making big law.


Helpful case for several reasons.  First page and a half restatement of Buckely distinction.  Two reasons Court has tradi said contrib. more scrut than expend  restrain on expend curb more express because each dollar express but dollars of contrib. are not.  Corruption with contrib. not so much expend.


These cases leave the soft money loophole open!  McCain-Feingold seals the loophole!


Souter reports that the Buckley court said something in particular about coord expenditures as opposed to individual ones.  What did Buckley hold about coord expend?  Buckley raised possibility that coord expend can be viewed as ways to circumvent contrib. limits.  If party says give $5,000 and we’ll be the funnel and send to candidate, expenditure on candid, but looks like passed through contrib..  Lots of people willing to max out.  Do they understand that you’re giving to representative aller against sen wirth?  All money go to candidate?  Understood?  Tension!  We’ll look at that.


Two major things: ban on soft money and electioneering ads.  Concentrate on those.  McConnell tomorrow.  Important new law.


Yesterday, we were steered to the fact that Souter’s summary of Buckley about coordinated versus individual expenditures treated as contributions.  They’re treated that way because of principled fear that they might be used as efforts to evade the contribution limits of the Act through prearranged things that looked like contributions.


Should political parties be viewed as different from individuals or corporations?  What argument does the Republican Party make that they should be viewed as fundamentally different?  The party is there to help candidates.  How does that make them deserving of some kind of protection?  The Republican Party has taken the position that political parties, just because they “bundle” money, in some sense, doesn’t mean you should view them as conduits to corruption; maybe they’re conduits to something else.  What are candidates?  Are they simply repositories of money?  What are they trying to do as participants in the political process?  Candidates are the exponents of public policy ideas.  You can’t separate parties from candidates.  That’s why they shouldn’t be regulated even in their coordinated expenditures.  That could be viewed as an extension of the candidate’s speech.


The government has a different argument in this case.  The government restates the Buckley distinction that coordinated expenditures have to be viewed as something in the way that we’re already identified.


Souter is good at writing opinions because he summarizes everybody’s views.  What is the government adding about parties now?  Up until now we’re had coordinated expenditure limits.  The government says that if you abolish these, you institutionalize evasion of the expenditure limits.  If you want to call it evasion, it goes on already.  The Party can spend two cents per voter on a candidate.


Souter rejects the Republican Party’s argument for several reasons.  One is historical and one is philosophical.  It is argued that the limit has been in place for a long time and has worked so far so there is no need to change it.  How can the Republican Party be arguing that political parties won’t be able to survive if they’ve been surviving?  Do they need this constitutional protection?  Well, they’ve already been limited and arguably not harmed.


What is Souter saying here?  Parties are in the same position as some individuals and some tax spending limits held valid to them higher limits than most other groups and PACs.  Why are they no different in his view that he describes as “aggregations of private interests bundled”?  Group of individuals giving their opinion.  Why should we worry about that?  Souter takes it back to the idea of corruption.  This is what we forbid.


Parties act as agents for spending for obligated officeholders says Souter.  If you follow his line of analysis, bundling of private interests.  Deregulation, 1996, democratic party coffees at Clinton White House Banking industry sec of treas if donate certain amount of soft money gave access you could talk with president and sec of treas.  President seemed to be selling access to Lincoln Bedroom if you had money for the party.  What about the watchdog groups for the industries?  They’re not contributing and they don’t get to have coffee in the White House.  Are we talking about a reflection of traditional quid pro quo corruption?  Unlimited coordinated expenditures control over candidate through conduit corruption.


There are a small number of high rollers who played a substantial part in each party.  60 contributors who gave at least $100,000 to Republicans and $70,000 to Democrats.  Unions giving Democratic Party this much money?  Want party officials seek to make federal or state office holders to policy priorities of those donors?  Coffee, phone calls, other stuff the rest of us don’t get.


Coordinated spending is when you’re running for office…the definition is in some dispute: “Magic words”?  What is sufficient to be coordinated?  Conscious notion that you as the party will take money that you get from other people and will use it in coordination with someone else.  You don’t tell him what you’re going to do.  Party being more independent.


Souter and the Court decide that parties don’t deserve a uniquely privileged First Amendment position.  They can’t spend unlimited coordinated money.  They should be the same as individuals and PACs in having contribution limits.


Last important thing about this opinion is…pointed out weaknesses to position.  4B – record in this case to establish tradition quid pro quo corrupt to justify lmts set by Congress.  Ample grounds!  For this kind of corruption.  Why?


Realist expectation really occurred.  Tacit?  Who says not tacit?  Could be parties also seeking.  People’s affidavits that Souter is citing.  What are they telling us?  The candidates know who is giving to the party.  It’s supposed to be anonymous.  Parties know!  No!  Bookkeeping.  What if you raise money from the party?  What does the party do?  When Wirth succeeds in raising money for the party, what happens?  Push this a little bit?  Closeness of connection?  There’s a pass-through here.  When Wirth raises money, the donors expect he’ll get donations multiplied by a certain number.  If I don’t get my pass-through I can go and complain to the party.  The deals are not merely tacit.  From Souter’s pov, that oughta be nuff in order to coordinated expenditure limits needed.  Money being handed over to candidates, or bonus that lets them have more money.


There are…dissent…majority here…a couple of things going on…Court is fractured.  Parties are a hybrid because you can’t easily distinguish between a candidate and its financial backers.  They straddle a gap between candidate and contributor.  They are also a financial mouthpiece.  The financial mouthpiece part can’t run around the policy aspect.  In Colorado Republican I, they are reiterating that independent expenditures correspond roughly to expressions of support for issues and candidates.  Coordinated expenditures can be limited like contributions are.




This is another example of Congress after a decade of tring and failing and a proedral saga like title 7 at beigning of semester ends up in 2002 acting bipartisan reform act took effect after election.  Two key provisions: soft money and electioneering communications.  Will only go over need to know.  Very fluid area.  Not any answers for yet.  Rise in hard money that BCRA put in place.  Raising indiv contribution levels.  Modest hard money changes.


Soft money


What can political parties do with soft money after McCain-Feingold?  Nothing!  They can’t use soft money.  That’s the law now!  They can’t receive it, and they can’t spend it.  What about local and state committees of political parties?  Can they spend $100,000 on federal election activities?  What can they spend it on?  They can spend it on local and state races.  They can’t use it on federal election activities.  But how do we define federal election activities?


They are trying to herd cats.  Is there a firm line between this?  Close to cross line?  You bet.  Are local campaign employees spend something on something close as they can and maybe a little over.  Congress tells people soft money is off the table for federal elections.  Candidates can’t solicit soft money.  But they can raise money for a voter registration group.


Electioneering communications


Congress imposes dramatic new restrictions on campaign-season advertising.  What is an electioneering communication?  The definition has several parts and it is very specific.  Why does the definition matter?  What limitations attach to it?  It’s more definitive than the former “magic words” standard.  What can happen as a consequence of being involved in electioneering communications?


This is a question of how you’re going to be able to fund these things.  You must fund them with hard money.  You can’t use soft money to fund these ads.  Corporations and unions couldn’t use the general treasury to fund these ads either.  Ads are one of the most expensive items in political campaigns.  People can’t have unlimited appetites for advertising anymore.  Some say ads are First Amendment activity.


What’s the Court up to?  It was a stunningly unexpected opinion.  There are long excerpts.  It is the longest Supreme Court opinion ever issued.  We want to focus on the big picture and the two issues that we just talked about.


The key switch, as has been true of so many issues, is O’Connor.  Stevens, Ginsburg, Souter, and Breyer, were willing to broaden their view.  O’Connor had not reached that point yet.


How much deference is the Court giving Congress?  What’s the definition of corruption?  What do they say about the constitutional interest?  We’re looking for some compelling governmental interest in order to limit the First Amendment.  The Court says that the constitutional interests are on both sides of the equation.  “Competing constitutional interests”…an unusual phrase.  The concurrence from Shrink Missouri is being moved into the majority.  There are constitutional interests on both sides of the equation, so Congress must help the Supreme Court balance them.  This is totally different than what was said in Buckley.  In that case, they demanded strict scrutiny, big interest.  Parallel to what courts do when we looked at 1979 and 1964 and complicatedness.


The Court relies heavily on Congress’s conclusion that candidates and donors have exploited the soft money loophole with parties serving as “willing intermediaries”.  They talk about the fact that top 50 soft money donors give substantial amounts of money to both parties.  It’s not just about promoting ideology, it’s about promoting influence.  But McCain says no evidence of vote-buying.  What is the comeback for that?


Corruption fulfilled because of access.  Example of legislation?  “Come on, we have to grow up a little bit here!”  There can be a broader kind of corruption: the agenda can be manipulated.  If you have influence over both parties, stuff may never even come up for a vote.  Things may never come up.  To claim that such actions don’t change legislative outcomes misunderstands the legislative process.  More sophisticated, broader view of what corruption is.  The Court says: “We get it”.


The electioneering holding is a transformative aspect of the opinion.  Dissent howls in disbelief at downfall of traditional quid pro quo view of corruption, plus a high level of deference to Congress to identify corruption.  The Court says: “We don’t know as much about this as Congress.  They are the experts.  Therefore, we will give them more deference.”


The deal is that the Supreme Court is accepting a more subtle view of corruption.  It doesn’t have to be extremely blatant to be dangerous.  But such an amorphous view is of concern to conservatives like Scalia and Thomas who worry about the abridgement of First Amendment rights.  Brudney also proposes that the decision is more instrumental than purely doctrinal.


McConnell v. Federal Election Commission – This part of the opinion is relatively short within the majority opinion.  Since Buckley, most observers thought that the “magic words” requirement was a constitutional standard.  In other words, the Court in Buckley limited the speech that can be regulated to the “magic words” because if you regulate any more than that, you would be infringing upon the First Amendment.


But this case says that the “magic words” rule was a matter of statutory interpretation rather than constitutional interpretation.  Because there is a new, clearer statute, you don’t need the magic words anymore and there’s no First Amendment problem.


The Court says that you can’t meaningfully distinguish between express advocacy and issue advocacy.  How come?  The Court finds that the distinction has become meaningless in practice.  An ad that gives a powerful statement about someone’s views on an issue doesn’t need the words “vote for so-and-so” to be effective.  In fact, such ads might be more effective without the “magic words”.


Justice O’Connor joined Scalia and Kennedy in dissent in Austin, but now writes for the majority.  O’Connor had opposed any broader form of corruption than the “magic words”.  Her turn changed the whole dynamic of the court.  Perhaps her change in opinion reflected changed realities.


Everyone who argued for the BCRA in court argued that the soft money and electioneering communications provisions should be seen as an integrated whole.  Buckley, by contrast, sort of “split the baby” and produced a statute that Congress hadn’t really written.  It ended up only regulating contributions but not expenditures.


Those are the two key features of the election regulatory landscape that the BCRA has changed: it has imposed significant restraints on soft money and on political ads.  Part of the deal about the BCRA was that it wouldn’t apply to the elections of 2002.  It wasn’t held up, however, while it was in litigation.  An independent expenditure is not coordinated with the party.  If the party ends up running a bunch of ads about why the Republican Party stands for “the values you should want in a United States Senator” when there isn’t a nominee yet.




When we look at what bribery is, we must recall that the First Amendment protects speech as well as the right to petition government for the redress of grievances.  Citizens are encouraged to express intense viewpoints to their legislators.  Also, legislators have absolute immunity from being prosecuted for any crime.  There’s only so much that can be prohibited in the way of bribery.


There is also the “nature of one’s theory of representation”.  How far are we going to extend the criminal law in terms of what we are prepared to inhibit?  What is the value of interest groups?  The trustee’s job is to figure out what the best solution is.  So far as interest groups are pressuring me to come to a certain conclusion, I will have a broad sense of what is impermissible pressure.  But the interest groups give the trustee information.  The trustee can’t possibly know enough about everything that’s going on in a complex legislative world.  But they’re not good as pressure producers.


But if you view legislators as agents, then you would have a different view of political pressure.  How do we deal with endorsements?  That’s a proxy for large numbers of voters.  As an agent, I don’t have to figure out what’s the one undifferentiated common good.  I can figure out just what voters want.  We end up with different views of what is acceptable or unacceptable political pressure.


We still have to figure out what the elements of bribery are.  What are they?  Let’s look at the federal bribery statute.  There is a public official.  What is the illegal thing that gets transmitted?  It’s anything of value.  What’s the relationship between the thing of value and the illegal act?  There has to be an influence.  There has to be a corrupt intent.  That’s what has to go into a bribery conviction.  Let’s look at the elements in a real-world context.  Say Davidson runs in a Democratic primary to run for an open House seat.  Davidson sits down with Evans, who is thinking about running.  Evans agrees not to run for Congress if Davidson will help her run for the State Assembly.  But nobody’s a public official.


Would it be a bad idea for this conduct to be punishable under criminal law even if the statute included it?  Political parties play a role in trying to coordinate the candidate selection process.  We may not want that to be illegal.  Maybe we don’t want members within the party to fight it out against each other.  So in that sense, maybe we don’t want a candidate bribery statute.


Whether you want such a statute may have a lot to do with the theory of representation that you subscribe to.  What about the “something of value” bit?  There are different things that might be offered to or received by public officials.  One thing might be personal benefits to advance one’s personal wealth.  But the harder case is political benefits, which are aimed at advancing the official’s career as a public servant.


You can’t want to prosecute taking something for political value if it’s an essential way in which we’ve structured the political process.  We encourage people to get endorsements.  How can we criminalize that?  It would seem that we need to read the “thing of value” provision narrowly.


Are there any problems with the court’s stated standard for what is public service?  What should you not enter into bargains with others for?  What is one of the key roles of legislators in this country?  Who do the legislators represent when they deal with administrative bureaucrats?  Presumably us.  This is a remarkably broad standard!  It’s a standard run wild!  You can’t give or support your condition of receiving anything valuable, including legislators.  It’s constituent service!  We might not want to outlaw all log-rolling.  Log-rolling might actually involve a political benefit you would want in a bribery statute.


Where do campaign contributions fit into this?  What if you give a campaign contribution insincerely just to get personal benefits for yourself through the government?  Most people think that explicit quid pro quo arrangements are very rare because people aren’t that stupid.  So what are you seeking in exchange for your campaign contribution if it’s not quid pro quo specific delivery of a vote?  You’re paying for access!  You don’t know what your next agenda item is going to be, but you want access to the real dude or dudette!


Think about corrupt intent as a sum result of a bunch of factors.  Something is more likely to be corrupt if you’re appealing to an official’s self-interest as opposed to an official’s self-interest only incidentally to your own pursuit.  Most campaign contributions are intended to get people reelected.  What is the difference between an unlawful gratuity and a bribe?


United States v. Helstoski – This says that the Speech or Debate Clause covers more stuff than just floor debate, but it’s still limited in some ways.  It is said that the Speech or Debate Clause limits the possibility for prosecution.  If you’re worried that you could have a prosecutor on your back, you might waste a lot of your time defending against prosecutors.  Even though the Speech or Debate clause originated out of the perception that the executive branch might harass the legislative branch, private individuals might also harass legislators for defamatory acts.  Does anybody have to go to court to defend themselves?  This is a really absolute doctrine with no balancing.


Federal regulation of lobbying


There are criminal statutes, there are codes of conduct, and there are Senate and House rules on gifts.  The federal regulation of lobbying activity, however, can best be described as “lite”.


There are two approaches to lobbying: direct and social lobbying.  There is also mobilizing support, trying to get people to contact their Congressman.  Grass roots approaches are at least as prevalent as direct lobbying.  Why the change in emphasis?  Maybe it has to do with all the regulation.  Why is it more effective to do grass roots lobbying?  People will do what works, and grass roots lobbying tends to work.


Part of it is the perception.  Grass roots organizations can create the perception that you’re hearing from ordinary people all the time.  Members don’t just receive cookie-cutter postcards.  They look like they’re coming from individuals.  But the letters are being cranked out by a technology operation.  There is a barrage of what seem to be individualized phone calls or letters.


One’s view of the value of lobbying is affected by how you view the legislative process and how a legislator should relate to her constituents.  If you think that a legislator is an agent rather than a trustee, should we be regulating lobbying, and why?  What might we be worried about by lobbying?  Lobbying could possibly lead to the appearance of corruption.  That’s the only basis for regulating lobbying that spawned the 1946 Act.  It turns out that the 1946 Act prohibited more or less nothing.  It’s worth asking whether disclosure alone can really be enough to regulating lobbying.  The assumption is that disclosure is a “disinfectant”.


Federal Regulation of Lobbying Act


Who is covered under § 307 and 308?  There are a couple of phrases.  People collect money for the purpose of advancing or defeating legislation.  Is there anything on its face that covers direct versus grass roots lobbying?  The text says “directly or indirectly”, which would seem broad enough to cover people who act indirectly through constituents in a grass roots context.  But that’s not how the Supreme Court reads the language.


What does the Supreme Court hold on this issue?  It depends on “direct communication with members of Congress”.  That doesn’t appear anywhere in § 307.  Douglas points out that the Court is adding and subtracting words.  How come?  Are they trying to avoid a constitutional argument?  What would be that argument?  Would there be an abridgement of the First Amendment rights of the lobbyists?


You try to construe a statute so you can save its constitutionality.  Douglas is very irritated.  Douglas wants to call the whole statute unconstitutional.  If the Court can save the statute by narrowing or reconfiguring it, they will try to do that.


The distinction between direct and indirect lobbying is important.  The Court seems sensitive to this distinction.  We’re not going to look very closely at Harriss.  Lobbying used to be a lot less effective than it is today.


Lobbying Disclosure Act of 1995


Who qualifies as a lobbyist under the new law?  How different is it than what existed under 1946 statute?  It’s somebody who has a lobbying contact.  How much time do you spend?  What are you supposed to be doing?  You have to spend 20% of your working hours in a six-month period on lobbying activities, and then you have to register.


What is “principal purpose”?  That’s like their full time job.  What do we mean by principal or primary?  That’s 50% plus one.  20% is a lower threshold than 50%.  In the first six months of the new laws operation, the number of people who registered as lobbyists jumped.  Now it’s 25,000.  If you lower the threshold, you get a lot more people involved.


Say we had a law firm in Washington that did a lot of legal work for automotive manufacturers.  Several times a year, they are asked to make key lobbying contacts.  They are probably not covered under the 20% rule.  Should they be covered as lobbyists?  Is the 20% rule a per se rule?  What’s so bad about reporting every six months?  It has a cost.  Plus it will be open to public records.


It’s 20% to that client.  Is that important?  You could spend more than 20% of your time on lobbying but not for any particular client.  What type of activity is registration required for?


If you do stuff to try to do stuff or persuade people to do stuff, then situations may be covered in things like this.  Where, or what kind of information has to be disclosed about these lobbying contacts?  What kind of information doesn’t have to be disclosed?  Should we worry about the difference?  Congress drew a line.


The types of lobbying under the 1995 Act include oral, written, or electronic information; and the Act covers officials.  This is huge!  Lobbying registration is up!  Just what kind of information must a lobbyist disclose?  Do they have to register a lot of information?


What’s the difference between § 5(b)(3) and § 5(b)(4)?  For 20,000-25,000 registrants every six months, this is a lot of information.  The law attempts to make the information user-friendly.  One useful piece of information that it would be helpful to know is who was lobbied by whom.  Does the registrant have to disclose that?  What does the registrant have to disclose?  at is true about these kinds of contacts?  Will privacy be offended?  Will privacy be compromised?  ere will not be strict liability.  It’s not the fines that really influence the lobbyists, but rather the possibility of public shaming.  There was a pressure point, and then they gave in on it.  What have we learned about these forms, other than that they’re long?  Don’t learn the details of the forms.  What’s the range of money being spent by the entities during the period?  $100,000 or so to $5.2 million!  That range is pretty steady.




Should a statute be narrowly or broadly construed?  Do statutes build on each other?  Does Congress reason from one statute to another statute?  The court can overrule precedent.  We still read Palsgraf.  Did Judge Cardozo discover the unforeseeable consequences rule?  Is the law found?  If you believe that, it would legitimize common law.  Think about whether there is some validity to Blackstone’s distinction.  What makes common law principled or discoverable if not the doctrine itself?


We noted yesterday that Blackstone’s view of the common law as “found” or “discovered” is at best overstated.  Doctrines that do develop are created, particularly by the best common law judges.  Think about whether there is any validity to Blackstone’s “principled” view of the common law if it’s not doctrinal.  What do courts do that’s principled?  What makes what judges do under the common law “principled”?  It might be plausibly fair, but how do they justify what they’re doing?  The judges believe that they are restating the law that’s already been there.  Been where?  They are reasoning from precedent.  Are they making rules of general application that will apply to all cases?  They reason from prior cases, and then decide just this case.  They articulate a rule that applies to this particular situation.


Judges decide cases based on precedent.  The notion is that there was a faith in legal process in the first half of the 20th century in terms of the reasonableness of the procedures used.  Those procedures could also be applied to the statutory world.  It was believed that the process by which law is made is so great that the result can’t be wrong.  Some believe that every statute is a purposeful act and that legislative procedure assures objectivity.  It’s an informed process.


When the legal process theory was in the ascendant in the middle of the 20th century, the legislatures gained more respect.  They were seen as better positioned than courts to tackle tough issues.  The lawmaking process in the United States was transformed by the New Deal.  Morange suggests that legislatures may articulate policy better than courts themselves.  Was this case rightly decided?


Moragne v. States Marine Lines, Inc. – A longshoreman is killed by working in Florida’s navigable waters.  The widow sues for death by unseaworthiness.  It seems like an easier claim when you’re under unseaworthiness because that’s a strict liability claim.  The defendants are trying to dismiss the unseaworthiness claim before trial, and it’s on an interlocutory appeal.



Death in territorial waters

Death on the high seas

Death by negligence

Jones Act

Florida wrongful death statute

Jones Act

Death on the High Seas Act

Florida wrongful death statute

Death by unseaworthiness

Nothing before Moragne

Death on the High Seas Act


Mrs. Moragne’s claim seems to fall through the cracks in the law.  Why should the Supreme Court address this at all?  Congress has had anywhere from 50-80 years to fix the problem.  Does that lack of action on the part of Congress mean that the Court should not be inventing a new remedy?  What would Blackstone say?


What if the Death on the High Seas Act had been frequently amended, but the issue that comes up in this case had not been addressed?


The Court borrowed English common law for The Harrisburg.  Why?  It’s the blessings of age.  The doctrine never had any practical validity in our country, but we’ve accepted it for centuries.  Does Harlan rely on this alone?  He says that there is no justification for this rule.


Before he speaks to the amicus brief, he talks about how a legislature enacts policy.  He talks about the fact that you must consider the scope of the sphere of the legislative enactment and whether it should be narrowly or broadly interpreted.  That is the quintessential legal process decision.  Harlan thinks that statutes should be given appropriate weight.  This is a revolutionary opinion!  It is important to weave the policies together.


What about the “anomalies”?  (1) Unseaworthiness in territorial waters produces liability if you’re injured, but not if you’re killed.  What principle would lead you to conclude that you can recover if you’re injured within territorial waters, but not if you’re killed?  The idea would be that only victims recover and not decedents.  So it’s not completely irrational.  It might be bad policy, but you can come up with an explanation.  (2) Identical breaches of duty, one inside the three mile limit and one outside, produce different results as to liability.  Is there a rational reason for that?  It’s more dangerous to be in the high seas.  It’s not irrational to suppose that we’ll have different levels of liability.  (3) A seaman is covered by the Jones Act, while a longshoreman is not.  The question is: Should we fill in these gaps with common law?


So what does the federal text say?  Does the text of the two federal laws help or hurt Justice Harlan?  How far apart were the statutes passed?  They were passed during the same Congress.  The same Congress looked at the same problem and decided to cover different jurisdictions with different standards.  This is not helpful to Justice Harlan!  A single Congress has looked at this and decided that it doesn’t look inadvertent or like an oversight.


Harlan uses the legislative history as a reason to step in now.  The language in the legislative history suggests that Congress was trying to fill a void in the law in 1920.  The void in the law in 1920 was the absence of a wrongful death remedy on the high seas.  States had been acting to fill that void in territorial waters.


Congress knew The Harrisburg existed when they were legislating.  Why didn’t Congress repudiate it as to territorial waters as well as the high seas?  Congress was not surveying the entire field and realizing that they were leaving a gap.  Congress was focused on a specific area and filling a gap.  They were worried about the high seas and not other stuff.


Legislatures could be doing one of two things: either they could be addressing a concept that’s come up before, or they could be venturing into new territory.  The thing that’s going on is either legislation is policy, an instrumentality (which can be extended by courts as common law agents according to Harlan), or else they are deals, and the scope of the statute is exactly the basis for going no further.  If there is a compromise or what looks like a compromise, we should notice what gaps legislatures have chosen not to fill in.


The Supreme Court feels authorized to extend that policy.  But then we have to deal with the problem of stare decisis.  You could die on the high seas through an accident or injury that doesn’t take the whole ship down with you.


We have an old case that has been relied upon many times.  The Court is creating a cause of action that Congress failed to create earlier.  There could be a stare decisis problem here.


Harlan goes through various considerations.  He argues that reliance is an easily deflectable interest here.  No matter how settled the rule is, no one is going to be surprised that there are big risks from unseaworthy vessels.  A change in this particular rule is probably not going to cause a radical change in behavior.


But if you create a new cause of action, complications ensue!  One problem is whether wrongful death survivors can recover for loss of consortium.  The Death on the High Seas Act is explicit in limiting damages to pecuniary losses.  How can we argue both sides of that?


Harlan concluded that stare decisis could be overcome in Moragne because making a more just new rule would create more faith in the justice system than sticking with the bad old rule.  But if you make a new rule, it makes for a lot of work for a lot of lawyers figuring out the contours of the law and it will now stand.


How would you argue that under Moragne you should not recover for loss of affection if you were to win in one of these actions?  Moragne is a common law decision, not an interpretation of the Florida statute.  Since Harlan used the DHSA to create the policy behind it and create a cause of action for wrongful death in territorial waters in strict liability, something something.


How would you argue that in light of allowing this action to proceed as a matter of common law we should actually allow it to go beyond pecuniary losses and encompass love, affection and loss of relationship?


Policy is being divined from statute.  How do we fashion a rule of law?  It’s a remedial cause of action.  People have suffered in a way that the law hasn’t adequately addressed.  We might say, if Congress doesn’t want to change its statute, that’s okay, but we’ll make the common law responsive to the problems of today.


Congress went far enough to create a statutory cause of action.  We have decided as a common law matter that we would create an additional federal common law cause of action.  We use that statute and extrapolate from it, but we don’t agree now what we feel the standard is now than it was in 1920.


Are there good reasons to extend the reasoning of Moragne?  Why is it unusual for courts to do what the Supreme Court did in Moragne, to extend the law beyond what the statute says?


Congress makes laws.  The courts have been active in admiralty and maritime law.  But if you give the courts the power to fill in laws that Congress didn’t make, you arguably create a competing legislature.


Flood v. Kuhn – It is important to be clear to the legal background to the case.  The issue of baseball antitrust has arisen several times.  What was the rationale for Federal Baseball?  When does Congress first appear in this drama?  What happened in 1952?  There was a subcommittee report.  What did they say?  Why did baseball need this reserve clause?  They said there were chaotic conditions without a reserve clause.  A reserve clause requires an anti-trust exemption.


By the 1950’s, most money is coming from sources that are inextricably interstate.  The time seems maybe to be ripe for overturning Federal Baseball.  Who else is aware of these changes?  Congress is.  Since it’s a statute, Congress is aware of the changes and they fail to propose new changes.  Should the Court, as a matter of antitrust law statutory interpretation, fill in a gap that has been created between baseball and other sports?  How do you reject Toolson?  You can go back to Moragne at least analogically.  They love baseball, and we’ll get to that in a minute.  You can’t rely on a love affair.  You could try to give a positive spin to it and say all the evidence in the record says that Congress was something something.  Congress wasn’t comfortable with it because 50 different times people tried to extend it elsewhere and they said: “No, no, no!”  The record is fertile!


What is the most persuasive form of inaction?  We’ll then do the funnel of abstraction.  There are at least three ways Congress might be silent in light of interpretation of statutory language.  They might reenact a statute without changes.  This is akin to reauthorization.  Congress might take no action on a statute after a judicial interpretation is raised.  Or Congress may amend a statute but not address the prior interpretation.


Which of these is the most “positive” inaction?  Which of these is most affirmative of what the court already decided?  If I want my judicial precedent to stick, then I want them to amend the statute without addressing the judicial interpretation.  There is a clear awareness that they aren’t doing anything.  They had the will to act and have lawmaking going on without disturbing the precedent.  When there is no lawmaking going on, then there isn’t really thinking going on.


Scalia says that there are many reasons Congress might not act, and so you can’t put that much weight on their total inaction.  If Congress actually acts on the statute in question but doesn’t change the judicial interpretation then that should bear more weight.  The more changes that are made, the more you can infer that someone was “on watch”.


Stare decisis


We have talked a fair amount about why from a legal process point of view we have stare decisis and a strong presumption against overruling statutory precedents.  We will mostly let Congress rewrite statutes.  The courts will not rewrite statutes as much.


There is a public choice theory of stare decisis.  Public choice scholars take the view that judges elect to be bound by prior decisions when it suits them, but at other times they will decide cases on public policy or instrumentality grounds instead.  The more expertise a judge has in a certain area, the less they will tend to stick to stare decisis.  So when does stare decisis kick in?  It kicks in as a form of “expertise trading”.  Judges take a free-ride on judges who have come before them on issues where they don’t feel ideologically invested.  Stare decisis may enjoy special favor in especially complicated areas where judges feel less confident about their own expertise and are thus more willing to defer to the judgment of others.  That’s just a theory, though.


In the Curt Flood Act, Congress overrules these cases to a limited extent.  Congress substantially ratifies the reality that had come about without their involvement.  Players could now challenge collusive employment terms under the antitrust laws in a way they couldn’t before.


Patterson v. McLean Credit Union – This is how the Court is thinking about overruling prior statutory interpretations now.  It’s about § 1981.  Does it cover private discrimination or not?  The Court added a question to the cert granted and invited the parties to overrule Runyon v. McCrary.


What are three grounds that could overcome a prior precedent?  (1) There could be intervening developments in the law.  There could be a long time between Court decisions.  There could be intervening statutes or judicial decisions.  (2) Upholding a precedent could create incoherence and inconsistency in the law.  (3) A precedent might become inconsistent with the larger society’s sense of justice.


The second reason is a way that you could argue that Flood is wrongly decided.  Baseball is a business!  Players weren’t free to sell the fruits of their labors in other markets.


Statutory interpretation


Theory will affect this!  But there’s also a practical component.  You can’t be a good lawyer in the 21st century without knowing how to interpret inconclusive statutory language.  When you move up the funnel, the most concrete stuff is at the bottom while the most abstract stuff is at the top.  Each of the five levels has some strengths and each has some weaknesses.



“Read the statute!  Read the statute!  Read the statute!”  Never lose sight of the words of the statute!  This is the first level of the funnel of abstraction.  The major justification of this is that the text is what is enacted.  The subjective intentions of the legislators is not enacted.  Everybody who wants to can look at the U.S. Code.  Plus, the plain meaning approach is supported by considerations of notice.


The legislative process contributes to imprecision in many respects.  How does the legislative process make language blurrier, less precise?  Congress sometimes equivocates for political reasons.  Language enacted in 1960 might be less precise in 1980.  “No vehicles in the park” means something different in 1870 than it does in 1970.


Also, the legislators might be careless!  The legislative process is pressured.  Not everything is fully vetted.  Maybe nobody thinks a certain issue will every turn out to be important and so they don’t give it as much attention.


Then we come to the second level: legislative intent.  The court is considered a partner in the process.  But we might worry that the courts encourage the legislature to engage in strategic behavior.  If you have a public choice view of the legislature, you can talk a more “schoolmarmish” view as the judiciary and make the legislature act like “grown-ups”.  That’s the tension between an intentionalist and a textualist approach.


Then there is imaginative reconstruction.  Sometimes a statute doesn’t resolve a case or controversy.  The court’s appropriate role in that case is to ask what the legislature probably would have done if forced to decide the issue before it.  You’re trying to put thoughts in the mind of a legislature.  But whose views should we reconstruct?  How do we know what the legislature in 1914 would have done?  Who else would we ask?  Would we ask the players?  Would we ask other companies or other organized interest groups?


Next up is the attribution of legislative purpose.  Unlike the text provides a definitive answer, the court should interpret the statute in such a way as to further its purpose.  This is sort of the “mischief” rule.  If the common law didn’t work to cure some evil and thus a statute was put into effect, the court should interpret the statute to continue to fight that evil.


This is more than imaginative reconstruction.  Hart and Sacks assumed that the legislature was made up of reasonable persons, and so the court should go beyond the cynical and short term positions of reasonable actors, but instead weave the statute into the overall fabric of the law.


From an empirical point of view, are there any problems with this description of the legislative process?  Do we have any reason to think that legislators are or are not the way Hart and Sacks describe them as being?  How do legislators function as legislators?  Hart and Sacks believed that the collective product of the legislature was rational.


There are problems with this motivational analysis.  Sometimes people pursue public policy, but sometimes they pursue party discipline, donations, or some other kind of strategic behavior.  The descriptive accuracy of the Hart and Sacks approach has thus been questioned.


Should courts be engaged in the activity of assuming or ascribing a purpose to what legislatures do?  Something must go on beyond textual analysis a lot of the time.  What’s the risk in letting the courts ascribe a purpose to the legislature?  The court might impose their own values on unclear text.


Hart and Sacks seem consistent with norms that try to get to predictability in statutory interpretation.  We generally want a set of rules that will apply the same way to every case.


How about the best answer theory?  This is expounded principally by Professor Dworkin and by Eskridge (though not Frickey).  The court is thought to act in a “common law” fashion in order to make the statute “the best it can possibly be”.  If the metaphor for imaginative reconstruction is “archeological exploration”, one metaphor for best answer is “the chain novel”.  The court writes the next chapter, and it acknowledges that it is responsible for taking over and asserting its supremacy.  Judges may tend to use this approach more than they will admit they use it.  If each particular judge gets to choose the best answer, we may abandon any pretense of predictability.


So how do we put this together?  These five approaches may be seen as mutually exclusive.  For example, if plain meaning works, maybe we could just use that.  On the other hand, most judges see these techniques as cumulative, where you start at the “bottom” and then work your way “up” the funnel.  The funnel is supposed to suggest an order of priority.  If the words of a statute are clear, it will probably govern your interpretation, with some exceptions.  There is a strong presumption that the plain meaning, when it is clear, will win out.


Similarly, if you look at the words alone versus intent, the words win out.  If you have clear intent versus imaginative reconstruction, the clear intent wins out, and so on.  Regrettably, none of these elements ever comes to you in pure, clear, and unambiguous form.  So as an attorney you have to sift through.


Rector, Holy Trinity Church v. United States – Sometimes a statutory purpose can be broader than plain meaning, and sometimes it can be narrower.  What’s the thrust of the statute in this case?  We’re dealing with immigration.  Most immigration laws try to exclude people.  Which reading of the statute excludes more people: a pure language based reading, or a purpose based reading?  This is a case where the language covers more ground than the purpose seems to suggest.  This is the opposite of the typical case!  The point is that this could go either way and there may be conflicting purposes.  There isn’t always just one purpose to a statute.


The church contracts with an English pastor.  The United States contends that this violates the statute in question.  The statute has some particular exceptions that do not include pastors.  The court rejects the plain meaning approach.  When is it permissible to do so?  The court is saying that we’ll go with the more abstract approaches rather than the most concrete approach.  But why?  What is the court’s test for abandoning the plain meaning technique?  The court is concerned with the possible criticism that they are trying to usurp the power of the legislature.


The test is:  (1) Consider the whole legislation.  (2) Consider the circumstances surrounding its enactment.  (3) Consider the absurd results which follow from giving broad meaning to the words.


When a statute is enacted, it has a Public Law number, and it gets published in the Statutes at Large.  At the end of each session, the new laws also get incorporated into the U.S. Code.  The Code has 50 Titles, organized by subject matter.  If you’re trying to interpret a federal statute, a good place to start is the U.S.C.A.


Do we have a definition of the term “labor” in the statute at hand?  There are some dictionary definitions.  The primary definition relates to physical labor rather than intellectual work.  But both are listed.


We don’t yet have the certainty that we would like to have.  So what was the mischief that Congress wanted to address?  They were concerned about the importation of cheap labor that was undercutting the wages of domestic blue collar workers.


What if a reaper manufacturer wanted to import skilled German laborers at the going U.S. rate?  In a “mischief” approach, we think that they’re talking about “ignorant and servile” laborers.  Skilled laborers don’t seem to be covered on the face of the mischief analysis.


What does the legislative history say?  It says partly that they considered adding the word “manual” to “labor”, but they assumed that it would be construed this way.  But on the other hand, they never did fix the problem.  Doesn’t that show some kind of contrary intent?  Does it show that we shouldn’t be giving exemptions to pastors?


Should the failure to fix or clarify something in committee be regarded as inherently suspicious?  We may be concerned about same gamesmanship with the committee report.


The casebook authors tell us that there was some legislative history that this court missed that has to do with excluding “mental laborers” from the scope of this legislation.  The concern is that Congress will not have sufficient incentive to put all the law into the statute if the courts treat committee reports as just as important as statutory language.


Could there be another reason why pastors are not specifically mentioned?  How do people come over to this country when they are in a troupe of artists?  It’s high profile and high visibility.  We want those people to get into this country because they’re entertaining us.  Maybe it never occurred to anyone to consider individual pastors coming over to preach at an individual church.  The statute dealt not just with manual labor, but with contracts for manual labor.  Congress was concerned that people were being brought over as what amounted to “owned labor”.  Restrictions were never imposed on so-called “immigration by worthy foreigners”.  But then why not amend the statute to make that clear?  It might be very difficult to draft something that’s consistent with that concept.


Some of the exemptions are for people who seem to be “mental laborers”.  So why would you need an exemption for some “brain toilers” if you didn’t intend that the statute would apply to any such people?  This seems to suggest that Congress had a bigger picture of labor than mere manual labor.


How might we use imaginative reconstructive to address the issue of whether pastors are covered or not?  What were they trying to do in passing this act?


If we were trying to decide whether to allow foreign pastors into this country, what would the legislature and interested parties have said?  Far from wanting to keep pastors out, we probably would have wanted them to bring them in.  We wanted to convert Catholics to Protestants.


When we imaginatively reconstruct a statute, we think about what both the members of the legislature and the interest groups (or interested groups) would have thought.


Brewer believes that the United States is a “Christian Nation”.  The current Supreme Court probably wouldn’t feel the same way to say the least.  It’s a big step from “we won’t exclude Christian ministers” to “we must let them in because we are a Christian nation”.


One lesson about the disagreement about Congress’s focus on the immigration act we were talking about before is that you can’t attribute omniscience to Congress.


Griffin v. Oceanic Contractors, Inc. – There’s this statute that authorizes the recovery of double damages for each day a seaman is not paid his wages.


The Supreme Court finds that the statute allows no judicial discretion and forces the court to award a lot of money to Griffin, almost to the point that it could have been a windfall.


The words “shall pay” are important.  These are construed as different from “may pay” or “should pay” or “will pay”.  “Shall” is a mandatory word, absent some qualifier elsewhere in the provision.


There is a concern that the plain language might conflict with purpose.  The respondent believes this act is primarily compensatory.  If that’s so, then if we give $300,000 for a $400 back pay claim, that ain’t compensatory.  Therefore, it is argued, a literal approach will fly in the face of the claimed purpose of the statute.


Rehnquist disagrees.  He believes that Congress has chosen to secure their compensatory purpose through arguably punitive means.


What is Rehnquist arguing?  Is he arguing that plain meaning should be used because when it is clear on its face it trumps everything else in the “funnel”?  Or should plain meaning be used because it furthers the “purpose” of the act?  Does Rehnquist use a “softer” form of plain meaning?  Does he suggest that something could trump plain meaning, but it just doesn’t here?  Scalia, Easterbrook, and others will take a harder-edged view of the plain meaning rule.  Rehnquist has cited to legislative history and is prepared to say that sometimes plain meaning can be trumped by other stuff.


What about the legislative history of this act?  Is this the same kind of legislative history that we were looking at in Holy Trinity?  No.  What Rehnquist is calling legislative history is the successive textual changes to the act.  It’s sort of “vertical” legislative history.  It’s what happened to the text over time.  He doesn’t look at committee reports or floor debates.  We tend to look at “horizontal” legislative history: we look at comment on a statute that is currently under consideration.  That’s what Holy Trinity was about.


So if you see courts talking about legislative history in jurisdictions were committee reports and floor debates and such are not recorded, they are probably talking about this sort of “vertical” legislative history.


There is no qualifier on “two days’ pay” and no qualifier on the period.  This is a change from previous versions.  There is no “up to”.


Does the Court think this is an absurd result?


Last Friday, we noted that a number of states passed laws in the 19th century saying that juries should be selected from a list of qualified voters.


What do you do with the purpose analysis?  What did society want?  Did they want to know who they could tap as jurors?  Do we let the list expand?


What’s the legislative purpose?  What’s the best answer?  It came out both ways.  How do the different models point in different directions?




United States v. Marshall – Four drug dealers are sentenced to mandatory minimum prison terms of between 5-10 years for selling LSD based on the weight of what they sold.  The appeal is only about their sentences, not their culpability.  Read the statute!  How do we evaluate the quantities of controlled substances?  How do we define “mixtures” and “substances”?  The issue in this case is whether the statute requires the carrier medium to be included in the weight required to get to the weight necessary to get to the minimum sentence.


Easterbrook starts by conceding that including the weight of the carrier creates the possibility of some unusual results because the pure drug weighs almost nothing (this is what Posner will say later).  How does Easterbrook deflect this concern in real world terms?  He thinks that it might not be as bizarre as Posner thinks it is because drugs other than LSD are diluted at similar rates.  Heroin is usually only 2-3% pure when sold on the street.  Easterbrook wants us to know that he is sensitive to the potentially bizarre implications of how this sentencing scheme will be carried out before he engages in a bloodless textual analysis.


Easterbrook says if the results of textual analysis look absurd, people start to think that it’s time to get away from the text.  So before Easterbrook goes off on his textual analysis, he wants to argue that the result is not actually absurd.


Just what does the text say?  Easterbrook says that the words of § 841 can’t be made to apply only to the weight of the drug.  What’s the significance of the phrase “detectable amount”?  “Detectable”, according to Easterbrook, must mean “detectable inside of something else”.  What about the word “mixture”?  Should you consult a dictionary when you look at “ordinary meaning”?  What does “ordinary usage” mean to Easterbrook?  It means the average understanding of the “average person” like you or me.  How is that different from a congressional definition or a chemistry definition or a dictionary definition?  The “ordinary meaning approach” is kind of resonant.  But just what is that approach?  A chemist would have a different understanding of “mixture” than a regular person, and also maybe different from a legislator.


Should we expect that if we look at a dictionary that the terms will be roughly comparable?  There may be potential confusion.  You hope for convergence, but there might not be.  Should we look at how a chemist approaches detection?  Can we potentially make an argument about notice based on due process?  Would a textualist want to look at a definition at the time the statute is enacted?


This is an area where the textualist approach and the best answer approach are not too far apart.  What is the most sensible way to look at law?  You want it to govern people, especially in the criminal area, in a way that people can understand, especially when it comes to giving notice.


Just what dictionary do we use?  Or do we want to look at lots of dictionaries?  (Muted trumpet going: wha wha wha wha.)  Dictionaries play a role here.  These are questions that judges almost never ask.  When the Supreme Court relies on dictionaries, you’ll find absolute chaos in terms of just what they are relying on.  Some scholarly articles argue that the only thing that seems predictable is that you can always find dictionary definitions to support the position that you want to come to anyway.


We’re using dictionaries as a proxy for “ordinary meaning”.  If we really need to, maybe we just look at as many dictionaries as possible.  If there are conflicts, then maybe we don’t rely on dictionaries as much.


The same amount of LSD might get you 10 years if it’s in a mixture, but not 10 years if it’s in a substance.  It seems weird to think that Congress would have intended such disparate results.


Is there another, stronger textualist dimension to this opinion that goes beyond words alone?  What does Easterbrook do beyond looking at the meaning of individual words?  He looks at the statute as a whole and the structure of the provision.


The last bit from Easterbrook’s point of view is that there may be a constitutional problem.  We’ll spend more time later on the canon of avoiding constitutional problems and the rule of lenity.


The dissents in Marshall – Cummings’s dissent relies almost exclusively on two pieces of legislative history: a technical correction on the part of Biden that passes the Senate but not the house, and an amendment proposed by Kennedy to clarify the mixture/substance and carrier issue.


Does this legislative history help us?  It shows that Congress was aware of the issue.  The fact that these legislative history items exist tend to show, according to this judge, that the majority is wrong in including the weight of the carrier.  But is that really true?  This might actually be helpful to the majority because these clarifications and amendments were brought up, but were defeated.  There was conscious dialogue about the issue, but they decided not to change the law.  This legislative history is not reliable.


Posner posits three strange consequences of the statute.  But does Posner have a response to Easterbrook’s argument about the structure of the statute?  What does Posner think that Congress was trying to do?  He was looking at all the different drugs in terms of number of doses.  His argument is that we should divine Congress’s intent.  He says that there is some rationality if we just look for it.  Congress, he claims, is trying to punish people on the basis of number of doses.  It’s just that they didn’t realize that LSD is sold with a much heavier carrier than other drugs.  When you take away the carrier, the sentences are consistent.  Posner thinks they should take away an obvious, inadvertent mistake in order to protect the true intent of Congress.


Should courts be allowed or encouraged to rewrite statutes?  Posner wants to correct legislatively enacted language.  Posner thinks that they meant something different than what the president signed.  From Easterbrook and the majority’s point of view, this is unnecessary.  Part of what Posner is arguing for is the Rule of Lenity.


Green v. Bock Laundry Machine Company – The petitioner reached into a large dryer and had his arm torn off.  At trial, he testified that he’d been improperly instructed on how to operate the machine.  His credibility was impeached by his previous crimes.  But Green wants to argue that this violates Federal Rule of Evidence 609(a).  But on the plain language, it seems that the benefit only goes to the civil defendant, not the civil plaintiff.  It doesn’t make sense why a civil plaintiff but not a civil defendant should be subject to the risk of prejudice from having committed a felony in the past.


What are the choices that the majority sees for unpacking the word “defendant”?  Defendant might only mean the defendant in a criminal case.  On the other hand, it could apply to all witnesses, civil and criminal.  There are two different approaches how to resolve this reaching the same result.


Which aspects of the “Funnel of Abstraction” are Stevens using here?  He looks at legislative purpose and specific legislative intent.


What was the common law rule?  A felon was not competent to testify as a witness at all!  Later, they could testify, but they could also be impeached.  Initially, they could automatically be impeached.  That is seen as too harsh.  Then they changed it so you can’t use just any felony conviction to impeach someone testified at a trial.  Instead, you could only use convictions for things related to dishonesty.  There are some crimes that don’t go to the witness’s truthfulness.  Some violent acts may have nothing to do with your ability or willingness to tell the truth.


But none of this common law stuff is in the legislative history of the Federal Rules!  Why are pre-1971 developments relevant to this case?  Part of it has to do with purpose.  What mischief is Congress seeking to address?  You have to dig deep to find out where the problem came from and why people cared.  The problem is: how do we deal with the issue of felons if we’re not going to bar them from the courtroom?


Scalia will retort that it’s silly to look at the ALI or ABA or anybody else, because there’s no evidence that Congress looked at those authorities.  But Stevens said that this statute would never be made unless there was an underlying common law problem or evil to address.


Senator McClellan is a leading player, and his focus becomes the Senate’s focus.


If we’re going to protect people by modifying the rule, we may argue that it better be done explicitly.  Who wanted civil witnesses protected?  The House did, and their views were out on the table.  This is a major area of disagreement where the House wants it and the Senate does not.  But since the protection was not included in the final rule, we can infer that the House lost!  From Stevens’s point of view, there’s no point in inventing a “mistake” theory.


Green is trying to testify as a civil plaintiff about the product defects that led to his arm being ripped off.  Only his testimony will give you any evidence of any probative value of what happened.  But if you let the jury know that he is a convicted felon and in prison, the jury may well turn against him.


Scalia would look to the textual meaning and figure out what is most compatible with the surrounding body of law.  We normally assume that congressional meaning and ordinary meaning are fairly congruent.


Does this “benign fiction” undermine Scalia’s attack on legislative history?  Justice Scalia wants to assume that Congress was reasonable when they enacted what they did.  But is this use of “benign fictions” could be seen as undermining Scalia’s idea about the unreliability of legislative history?  Is Scalia a closet legislative historian?


Can legislative history ever be shown to be understood as a matter of fact by a majority of both houses?  Scalia denies this.  We don’t poll members to ask what they know about legislative history.  So as a matter of fact, the legislative history was not known to most of the voting members.


So where does the benign fiction come in?  Scalia assumes that legislators are reasonably attentive to how one statutory provision fits into the whole.  Brudney suggests that it’s not a huge step to assume that a similarly reasonable legislator would pay attention to legislative history and would study it critically (for example, given more weight to the opinion of the majority floor manager and less weight to the minority floor manager).  Can we indulge some benign fictions but not others?  Or are some fictions more benign than others?


Scalia makes several arguments for why legislative history shouldn’t be looked at.  The question isn’t whether legislative history trumps the text; it’s whether the legislative history has any probative value.  Everyone agrees that legislative history isn’t fully legitimate because it wasn’t voted on.  But not everyone agrees that legislative history is completely illegitimate.


But on the other hand, a bill is drafted by a committee before it goes to the floor.  Brudney seems to want to say that just because legislative history isn’t 100% legitimate doesn’t mean that we shouldn’t be able to squeeze out the 5% legitimacy therein.


Scalia really argues that legislative history is unreliable because there are incentives to act strategically.  Brudney wants to argue that this might not be true.  For example, he argues that staff members aren’t always scoundrels and can get fired for doing things that are too screwy.


Could we standardize statutory language by agreement?


Blackmun’s dissent in Bock Laundry – He’s concerned about taking away people’s rights.  How does he interpret the record in order to come to the result he wants?  He uses a classic Hart & Sacks purpose-centered approach.  The bill was intended to eliminate prejudice against any litigant.


They all agree that the text can’t mean what it says, but they have different ways of dealing with the problem.


Scalia wants to do the least “damage” to the text.  Scalia thinks that litigants don’t automatically need the same protection in civil cases that they do in criminal cases.  Plus, criminal defendants are mentioned in the conference report, while civil defendants are not.


Dynamic interpretation


After legal process and textualism, this is the third and final theoretical approach to statutory interpretation that we will consider.  This approach doesn’t consider statutes to be tied to the enacting legislature, but rather sees statutes as evolving over time.  Eskridge tries to reconcile the text with both legislative history and subsequent evolution.  He argues that courts engage in dynamic statutory interpretation far more often than they claim to.


In the Matter of Jacob – Here are two cases going to the Court of Appeals of New York and dealing with a cohabitating heterosexual couple and a cohabitating lesbian couple.  § 110 says that a boyfriend and girlfriend or gay couple because neither one is a two parent married family or one parent alone.  The other thing is that § 117 says that an adoption extinguishes the parental rights of the natural parent.  This is because they want to protect adopted children against biological parents changing their minds.  The court argues that the legislators never anticipated the changes in social conditions that would allow for unmarried couples and gay couples to adopt.  The statute dates from the 1960s and 70s.  Social conditions have changed since then!  The court wants the statute to change to fit the social conditions.


Eskridge wants to tell us that dynamic statutory interpretation goes on more often than courts want to admit.


How can we rehabilitate this opinion a little bit?  This opinion doesn’t really satisfy the legislative purpose in New York.  It looks clever, but it looks like judicial policymaking.  What is the relevance of the political realities of the time to the Court of Appeals of New York?  The New York legislature had blocked passage of bills prohibiting discrimination against lesbian and gay parents.  Could there be some problems with the way the court interpreted the statute given the policy expressed by the legislature?  Is the court usurping the policy-making role here?


Can you justify the majority opinion as an effort to engage in purposive interpretation?  What is Judge Kaye trying to do?  Is the judge trying to protect the best interests of the child?  Those are the basic purposes of any adoption law.  You don’t have to appeal to a particular subsection of a statute to make this argument.  Kaye may be saying that there is a pretty patchy statutory scheme that is not in harmony, but clearly has one purpose: to do good for kids.  Kaye wants to harmonize the “slivers” of law and construe the statute to avoid discriminatory results.  This opinion may be rehabilitated in purposive terms.  We may not like having the court rewrite the text based on its values.


When you look at the legislative background in New York, it’s hard to argue that Kaye didn’t know what was going on.  But Kaye looks at “best interests of the child” as an anchor to try to harmonize conflicting provisions.


Li v. Yellow Cab of California – This is an old statute like 42 U.S.C. § 1983, which we’ll look at in Smith v. Wade.  Because the statute is old, we want to ask whether the statute means something different today than when it was written.  Shall the California Supreme Court invalidate contributory negligence and replace it with comparative negligence?  In California, contributory negligence is actually part of state statues.  So can the court really do this?  Does the legislature have to abolish contributory negligence and replace it with comparative negligence?  If they meant to do that, would they or wouldn’t they have done it already?


In Moragne, Harlan updated the common law of admiralty.  But in this case, the court is trying to update a statute.  The court is not free to decide that “this is not a good policy, so let’s just change it”.  Why can they do it in this case?


The language is: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.”


The 1872 California Civil Code was never changed up to the date of the Li decision.  What if the language in the Code was reenacted as the “Tort Reform Act of 2003”?  Is there anything in the language that invites you to conclude that it’s not contributory negligence?  Part of it would be the fact that the title includes the word “reform”.  Also, there is language in the statute that sounds “proportional”, which in turn sounds like the “more or less” rule of comparative negligence.


The court here starts from the proposition that in 1872 people thought they were enacting contributory negligence.  But if we started with the plain meaning of this language, you could read it as comparative negligence if you wanted to!


Ultimately, the court relies neither on the text nor the legislative history.  They rely on “emerging concepts” in tort law from other jurisdictions.  They conclude that the legislature in the past didn’t want to keep the judicial system from evolving.


What theory of interpretation is being used here?  It’s more of a purposive or best answer approach.  It’s quite liberal.  They make a broad claim about legislative purpose.  It’s more legitimate to couch the decision in legislative purpose terms rather than best answer terms.  The former is more respectful to the power of the legislature.  Dynamic interpretation is closely related to the best answer approach.


Shine v. Shine – How much can you do to correct legislative mistakes or simple lack of foresight?  Shine and Shine separate in 1972.  They divide their property without making a support agreement.  Later, the plaintiff sues the defendant seeking separate maintenance.  The court orders the defendant to pay $250/month in 1973.  This is the key monetary resolution between them.  This is a maintenance order arising out of a separation.  Later, there is a divorce decree with no support.  Later, in 1982, the plaintiff sues for arrears on the support payments.  But the defendant was bankrupt, and, as we’ll see, the statute was all screwed up in 1982!


The plaintiff brings a lawsuit for declaratory judgment that the support payments are nondischargeable (that is, the payments still must be paid despite the bankruptcy).  There is no separation agreement.  That’s what the statute seems to require.  How do we get around that apparent plain meaning problem?


The court refers to two conflicting public policies in this area: first, bankruptcy rules are to be construed in favor of the debtor in order to help the debtor get back on his feet.  But on the other hand, we generally won’t let bankrupt people off the hook from alimony and child support.  That’s not exactly a bankruptcy law policy.  Why do we care about those particular debts as opposed to commercial debts?  These debts are “inherent obligations”.  Society is organized in the family unit.  We have bankruptcy law, and we have family law.  These two bodies of law are at odds in this case!  We want to protect families and kids!


How was this statutory provision originally understood?  What’s the common law background that informs how we understand marital payments?  Alimony was considered a duty rather than a debt.  In Wetmore, the Court declared that this was the rule all along at common law.


Traditionally, property settlements were dischargeable in bankruptcy while periodic support payments were not dischargeable in bankruptcy.  In 1970, the law was changed to recognize the benefits of recognizing property settlements that were protected against discharge.


In the court’s view, did the Commission on Bankruptcy Law intend to shrink or expand traditional protection for families in 1978?  They intended to broaden such protection!  They were trying to expand the universe of nondischargeable support debts beyond periodic payments.  Since Congress is taking its marching orders from the Commission, we figure Congress couldn’t have meant to constrain protection either.


The court also says that the statute was passed in a hurry.  The court concludes that Congress couldn’t have meant what it said.  On the face of the language, this debt is dischargeable because it didn’t come to pass as part of a settlement agreement or divorce decree.


There is one more piece of the puzzle: the bankruptcy laws are amended again in 1984 to include exactly the kind of agreement at issue in Shine.  Was the 1984 statute prospective or retroactive?  It was explicitly prospective.  Well, what’s the effect of that?  The 1984 statute became effective for cases filed 90 days after its enactment.  Does this show intent on the part of Congress not to fix their purported earlier screw-up?


What is the court saying about the 1984 language?  They say that just because this law is explicitly prospective, it doesn’t mean that the law was any different before.  The court urges us to compare this to Wetmore.  The court says that the 1984 amendment simply carries forward the “true meaning” that the statute had all along.  Do we buy this?  Does the 1984 amendment make it easier or harder to support the court’s result in this case?  If Congress was just doing “housekeeping”, wouldn’t they have said so?


Is there some rational basis for Congress to decide in 1978 to limit nondischargeability?  Could Congress be trying to reduce post-marital “vitriol”?  Maybe under some conditions there has been a meeting of the minds (an agreement) that should be enforced, as opposed to an order imposed from without.


We’re about to look at the Florida election saga.  Among the language canons, there are a series of rules that are sometimes a last-ditch alternative to statutory construction.  This one deals with the “shall vs. may” discussion.  We have also previously discussed the Whole Act Rule, which says that provisions should be interpreted in such a way to not take away from the force of those provisions of the act.  Thus, titles can be considered to resolve uncertainty.


Florida Code § 102.111 and § 102.112 were both validly enacted, but they seem to conflict.  What do they tell Katherine Harris to do?  Do we have a clear answer based on statutory language alone?  There is a “shall vs. may” problem.  In the first statute, it says that they “shall” ignore missing counties, but in the second statute it says that they “may” ignore missing counties.  That’s a conflict!


What happens when we take into account the maxim that more recent enactments control over older enactments?  That would seem to give more weight to the “may” language.  What about more specific provisions trump more general provisions?  The more recent statute would win again.  But what about the Whole Act Rule?  In the later version, there are penalties assessed.  How do we have to interpret the statute if we must give force to the penalty part?  It also seems like we take the “may” instead of “shall”.  Are we supposed to count overseas ballots as legitimate in this country?  Yes, there’s a federal law that says we must.  What might happen if the votes are postmarked on Election Day?  It is suggested that we must accept them.


Bishop v. Linkway Stores, Inc. – The federal discount rate was 8.5%.  The interest rate on the purchase was 15%.  Does this violate the Arkansas Constitution?  What does § 13(a) say?  It’s about “general loans”.  It limits them to 5% over the federal rate.  What remedies are available?  In § 13(a), you can get back double your interest paid.  But in § 13(b), it just voids the whole loan.  But maybe these are harmonized.


Even though this is a constitutional amendment, we’ll interpret it the same way we would interpret a statute.  What’s the record for the constitutional amendment?  What’s the analogue to legislative history?  Is it newspaper reports?  Do newspapers have less incentive to stay honest?  Where does it end?!  Parade of horribles!!!


Judges and justices have lots of discretion in sifting through any of these sources.


Unlike these kinds of language canons, which at least purport to operate in a similar way for all type of statutes, the subject link rules don’t apply across the board.  They usually direct courts to interpret statutes either liberally or strictly.  For example: presumptions against diminution of Native American rights or violation of international law.  These canons reflect judicial respect for outside sources of law.


There is also a canon that says that statutes that are remedial should be liberally construed, yet statutes that come from common law should be strictly construed.  Sometimes the canons will be in conflict!


The rule of lenity


This is a very old rule.  If a punitive statute doesn’t clearly outlaw private conduct, the private conduct can’t be punished.


Muscarello v. United States – § 924(c)(1) says that if you use or carry a firearm while committing certain crimes, you get five years extra punishment.  What if you trade a gun for drugs?  Muscarello carries a gun in his truck.  But is this “carrying” within the meaning of the statute?  Breyer trots out everything but the kitchen sink.  We have three dictionaries, the great works of Western literature, and other stuff.  Is his argument persuasive as opposed to Ginsburg’s argument?  Does the majority clearly win on language?  There’s lot of historical stuff.  Is it persuasive?  It’s more dangerous to carry a gun on one’s person than to carry a gun in a car.


Does Ginsburg agree with the “tie-breaker” conception?  Last time, we looked at Ginsburg and Breyer’s argument’s about the statute as a whole and found that the rule of lenity was considered a “tiebreaker” by Breyer.  Ginsburg gave more weight to the rule of lenity.


We were asked to think about the three different justifications for the rule of lenity.  For example, what about the “fair notice” concept?  Do we need the fair notice justification for the rule of lenity to help decide this case?  Breyer says that we don’t.


Should it really come as a surprise that if you’re dealing drugs out of your car having a gun in your car will get you five more years?  Breyer is probably right: the fair notice function probably doesn’t add much to this.


What about the mens rea issue?  How can you argue that someone traveling with a gun in a car doesn’t have the mens rea for this crime?  The statute provides that if you are using a gun during and in relation to a crime, you’ll get the extra five years.  Drug dealers are bad dudes!  Do they really need notice?  But maybe they get embroiled in a violent crime.  What about the felony-murder rule?


What about the Second Amendment?  We don’t generally criminalize gun possession.  What’s the policy tag for the rule of lenity?  Courts ought to be very careful to define criminal activity involving gun possession alone because that takes away more civil liberties.  If Congress didn’t adequately or specifically define it, we’re taking away activity that implicates the Separation of Powers aspects of this rule.


Ginsburg was worried about vagueness here!  You have the constitutional right to have a gun in your home or car.  Then all of the sudden a drug deal happens!  Is it fair that you may get five extra years just for having a gun around?  Is Ginsburg right?


What about the word “brandish”?  What does it mean to “brandish” a weapon?


McNally v. United States – The majority looks at the original purpose of the statute.  This is the federal mail statute.  This is simply an expansion of a monetary category.  Did Congress mean to create a whole new category of fraud in 1909?  If so, wouldn’t we have noticed some debate?  But there wasn’t any such debate!  From the point of view of the majority, this is just an expansion of the concepts of the earlier statute.


Stevens, in dissent, says there are two different ways of being guilty of mail fraud.  It could be money or property, or something else.  He argues that the “or” must mean something!  What are the public policy considerations?  What are the rule of lenity considerations that support Justice White in the majority?  Is this a political question doctrine consideration?  Are we going to criminalize hardball politics?  Each party will come out prosecuting the other party!  This is a traditional Separation of Powers problem.  We should be very clear that Congress wants to do things this way before we put it into force.  White felt that if he was wrong, Congress would fix it, and they did, real quick.


Which language canon could you use to get out of this?  What about the presence of the word “or”?  How about “conjunctive versus disjunctive”?  How do you make that a Whole Act Rule argument?  If you make two halves of a prohibitory section duplicative, it doesn’t make sense!  Congress wouldn’t say that we prohibit “A” or “A”!  They say that we prohibit “A” or “B”!


National Labor Relations Board v. Catholic Bishop of Chicago – The NLRB ordered Catholic schools to bargain with unions.  The Board only declines jurisdiction over religious schools when they are completely religious.  The schools were found to be not completely religious because they had some secular classes.  The Supreme Court says that under this rule, in effect, the NLRB could control all church schools.  The Supreme Court overturns the NLRB!


What is the applicable canon?  Here we have the constitutional question doctrine.  We should avoid any construction that would violate the Constitution.  But if we don’t take it the way it’s intended, which other construction do we pick?  Can we just pick any other construction out there in the world?


The majority does a fair amount of rewriting.  The policy norm is valuable, but people are critical of the misuse of this canon.  It creates superlegislative powers for the courts!  If it’s possible something could be wrong, so matter how remote, the court gives itself the power to fix it!


What does the Board suggest?  The Board’s role if a unit has been recognized as a bargaining unit is to figure out what they’re going to be bargaining about, like terms and conditions of employment.  But the school will say that, for example, we can’t give time off for Christmas because we have to take care of the poor on that day.


The position is that we don’t want to look at the record because it’s going to be automatic and has to happen.  It’s almost like a legal conclusion.  But can we avoid this?  Can the Court reconfigure the statute?  The Court looks at the legislative history to try to find a way out of this dilemma.  In 1935, there was no expression by Congress to cover teachers in religious schools.


What about a nurse who opposes unions on religious grounds?  The majority contends that this amendment reflects sensitivity to First Amendment guarantees, supporting its position that Congress would have worried about such things.  Can we argue that the 1974 amendment actually hurts the majority’s position?


At the end of class yesterday, we were talking about the 1974 amendment to the NLRA.  What if you oppose unions on religious grounds?  Does this hurt the majority’s position?


What if they give an exemption to the employee there?  What if they collectively bargain?  There are several different arguments.


Why should you read from this amendment the conclusion that in order to avoid constitutional concerns you must exclude employers?  It’s complicated.  Basically, the court says that, in an effort to construe this statute to avoid a constitutional problem, you must find out if Congress meant to “belly-up” to this constitutional issue.  But they had no intention of touching First Amendment consequences.  You could look at the amendment and get the exact opposite conclusion.


Is the majority being consistent in deciding whether this is an evidentiary matter?  What is the basis for the Court’s conclusion that they were going to exclude religious employers?  Was it factual or legal?


What about employment?  What might an employer put down?  There will be rules about reporter objectivity in a union of reporters.


The dissent says that the majority is using the canon wrong.  Brennan says it must be fairly possible and reasonable.  That reins the judiciary in a little more.  That deprives Congress of the ability to learn from or act on the constitutional limits of its own powers.  It also leaves statutes susceptible to being rewritten by courts that still want to uphold them.


Brennan says that the majority’s construction is not fairly possible for three different reasons.  What reasons?  (1) The act’s wording – There are express exclusions.  There are eight of them.  Some of the exceptions are very big.  This is a classic expressio unius situation.  (2) The act’s legislative history – The NLRB has a pattern of including non-profit and religiously associated organizations.  What happened in 1947?  The Harley bill would have made more exclusions, such as for religious organizations, but that bill didn’t pass.  (3) The Court’s own precedents.

It’s not that the canon is divinely inspired, it’s just applied.  Do you like to update statutes to improve their constitutionality?  Or are you an originalist?  There is no unified state of the canon.


Gregory v. Ashcroft – The Missouri Constitution requires mandatory retirement at age 70 for most judges.  Was that prohibited by the ADEA?  But what about employees on the policy-making level?


The super-strong clear statement canon


Here is the super-strong clear statement canon.  If you assume that you’re in the petitioner’s position, and you don’t want to die soon, you want to make a plain language argument using language canons that under the language of the act, I am clearly an employee and thus someone who should not be subject to mandatory retirement.  We’re talking about the super strong clear statement rule.  If the balance between federal and state power is going to be altered by statute, that statute must be extremely clearly stated.


Noscitur a sociis!  Take the meaning from other things, and then put them into identifications or exclusions.  What personal staff have or immediate advisors look like they’re closely tied to people elected to public office, thus I shouldn’t be excluded from this definition.  The exceptions are on either side of them.  They should work closely with and be accountable to elected officials.  In plain language terms, this is an argument that Justice White tries to deflect or derail or respond to.  He takes it on by saying that even a traffic court example would end up excluded because the categories are all in some way connected with elected officials.


There are ways to think about this case in terms of linguistic analysis.  Then there is a Whole Act Rule argument that is the notion of being in a close working relationship which is true about two kinds of people.  The universe of people who work closely with elected officials like these appointed judges who certainly are covered.  You don’t need to get beyond the language of the statute to come out the way the Court comes out in this case.  The canon they are using has some constitutional overtones.


What is Congress doing?  What about people who are elected or appointed?  Why would Congress dictate as to things the voters can only affect themselves?  What if you’re not permitted to like these people if you keep them?  That’s crazy!  Any rational legislature wouldn’t mean this!  Why are we talking about these two theories?  There are some ample grounds for being able to decide this case without getting to O’Connor’s rationale.  We could have used the language canons and plain meaning.  White is unhappy about the result.  Why?


Why are appointed judges non-employees under § 630(f) of the ADEA?  What about the canons of avoiding irrational or unconstitutional results?  Couldn’t elected judges be unseated by the voters?  So isn’t it irrational to treat appointed judges differently?  Could this fail the rational basis test?  Only a possible or fairly reasonable unconstitutional interpretation of a statute could cause the Court to want to change the statute.


Garcia says that the states don’t need any extra judicial protection under the Tenth Amendment.  The present case was heard at a time when Garcia was still good law.  Do we have a Tenth Amendment problem in this case?  Five years earlier, the Court said that the political process resolves all issues of dual sovereignty.  Now the Court is creating a canon application whether a constitutional problem could have been created, so it must be avoided.  The Court is trying to do something without having to overrule Garcia.


Debunking and defending the canons


It would be easy to take Llewellyn’s table and say that canons should be completely debunked.  But canons influence the development of a law.  Judges rarely decide cases solely on language canons.  But why do judges rely on such canons?  Do canons effectively constrain judges?  Judges like them and use them.  Maybe the canons are a kind of a “checklist” to stimulate reflection on the meaning of words.


Public choice theorists have a different take on this.  They believe that judges have policy preferences even if they couch them in more principled terms.  Canons come into play when judges don’t have a clear point of view.  Why might they not have a clear point of view?  Maybe the case isn’t in one of their areas of expertise.  If the courts are construing statutes on very different subjects, the canons can relieve them of the need to get detailed knowledge of such subjects.


If you don’t know exactly what Congress meant, you give Congress the chance to speak again.  For example, Brudney found that canons were used very frequently in ERISA cases where the language was very complicated.  When using canons, are you just masking the fact that you don’t know what you’re talking about?  The canon debate reflects a tension between law and politics or the perception of law and politics.  Are canons just easy recourse to things that “look law-like”?


Legislative history


Should legislative history be examined as a way to help interpret statutory text?  Why or why not?  How about some reasons not to rely on the legislative history?  In floor debates and such, people might be acting strategically and not genuinely.  Also, in the House, you can make revisions to what you say on the floor.  Therefore, you’re not always sure that something that’s printed in the Congressional Record is what was actually said on the floor.  Committee reports, on the other hand, don’t have that problem.  They are what they say they are.  Legislative history is also very lengthy.


Say we don’t have an absolutely clear text in a statute.  If we don’t look at legislative history, what are we going to look at?  Could we look at history history, like newspapers and stuff?  Wouldn’t some of that be in the legislative history?  You could also look at case law.  But case law may not give us uniform answers.  You could look words up in dictionaries.  A lot of judges spend a lot of time looking at dictionaries.  There are some cases where the parties have “dictionary wars”!


How about some arguments for looking at legislative history?  We could use it to find the intent behind a statute.  What do we mean by intent?  It’s what the legislature wanted the statute to mean.  What are some problems with this?  Well, what is enacted?  What does the process yield?  It yields a law that people vote on.  There’s a big debate here! Some people say that legislative history can’t have any meaning because we don’t know whether a speaker is speaking for herself, for a majority, for a critical submajority, or being strategic.  Others argue strongly that there is an adequate way of understanding legislative history.  Once we assign relative importance to different parts of the legislative history, it does turn out to be helpful in informing us what ambiguous language means.


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.


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.


Extrinsic sources of evidence!  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?


Committee reports


What about committee reports?  The traditional 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.


Committee reports are a key stage in the process of making legislation.  There are two main parts of a committee report:  (1) The general statement or “background and need”: this tends to explain or justify why the committee is engaged in trying to enact this legislation.  What’s the gap or social evil in existence that leads us to address this matter?  This can be a long section.  (2) The sectional analysis or “committee views”: this gives you a sense of how the bill works, broken down part-by-part.  There are some other parts that you’ll often see: (1) Additional majority views – sort of like concurring views, (2) additional views – more like dissent, and (3) minority views.


Does anyone read these committee reports?  Maybe the other legislators or their staffs will read these reports.  Legislators take a lot of time raising money and doing other junk, so they need to know what’s going on back in Congress.  If you’re in the Judiciary Committee, you don’t have time to keep up with the Commerce Committee, for example.  Not only do you want to know what’s up, you also delegate your staff to find out what you need to know.


Sometimes debate is not allowed to start until a certain senator has seen the committee report.  If you can’t see the report, you can’t see what deals were made in your absence.


Blanchard v. Bergeron – This is a § 1988 case.  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.  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 isn’t 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 majority’s 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 it’s not the job of Congress to do that.  Congress shouldn’t abrogate its duty to the courts.  But what’s the problem in concluding that Congress can’t or won’t understand references to case law?  Aren’t you saying that they’re dumb or inattentive?  But Scalia isn’t prepared to embrace that in other circumstances.  Scalia imputes knowledge to them of canons of construction and stuff like that.


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 § 302(c)(1).  According to Easterbrook, it’s a conflict between the text and the conference manager’s 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 it’s with the document that’s with the actual statutory text.  The conference manager’s 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.  That’s 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 don’t always get it right.


Statements in hearings and floor debates have not been given the same kind of presumptive respect as other documents.  Why are witnesses stacked in favor of a bill’s proponents at hearings?  If you’re in the minority, it will be hard for you to get a hearing for a bill you want.  Hearings are usually called by the majority.  The minority has some power, but they would need some allies in the other party.


Floor debates are replete with efforts to sell a bill to colleagues, constituents and C-SPAN viewers.  Members sometimes have ulterior motives.  There may be party politics or presidential politics involved.  There may be some “spin”.  Particularly in the House, you can amend and extend your remarks, which gives you the chance to have things appear in the Congressional Record that weren’t actually said.  Notwithstanding those kinds of risks, the Supreme Court often relies on statements in hearings or floor debates and committee hearings.


Our focus is on the principled methodological stances the various justices take.  But even such stances have their limits.  Scalia and Thomas almost never cite floor debates or committee hearings when they write their own opinions, but they may join in other people’s opinions that seem to rely on extrinsic materials that Scalia and Thomas are opposed to.


So floor debates get more attention if the author appears to be well-informed or seems to represent the views of his colleagues.  Hearings, at times, may provide the best-informed explanation of what legislation is about.  If the administration was instrumental in introducing a certain bill and a member of that administration appears before a committee, their testimony may be given a lot of credit.  The rejection of proposed bills or amendments may also give evidence of the legislature’s intent.


BankAmerica Corp. v. United States – “No person at the same time shall be a director in two or more corporations…engaged…in commerce, other than banks, trust companies and common carriers.”  This is a tough case partly because it involves a statute with a double negative in it.  “Nobody can do something except if…”  If the exclusion is broader, then the prohibition becomes narrower.  It’s a prohibition against “interlocking directorates”.  But what the heck does the language mean?  Is it plain on its face?  Do we need guidance someplace else?  They argue about the structure of the Clayton Act.  But Burger isn’t persuaded himself.  This language does not fully resolve the case!  The ambiguity allows the case to be fought out “further up the funnel”.  What about the “Wright Patman letter”?  Should it be given substantial weight?


The interpretation by the Justice Department in 1917 may hold more weight because it’s more contemporaneous with when the bill was enacted.  What about the executive branch’s contribution to the meaning of statutes?  In this instance, when you’re looking at an interpretation contemporaneous with enactment, they may have expertise as to how the law applies to them.  What about Louis Brandeis?  He is an advisor to President Wilson and represents the executive branch.


Representative Mann is angry!  The other guys are happy!  White’s position is that the language is genuinely ambiguous, and a key aspect of the legislative history is the floor debate.  He notes that what Mann and the Webb-Shirley duo disagreed about was whether or not the language prohibited “bank-insurance interlocks”.  What the three members are disagreeing about is just what the House had done.  Has the conference changed the meaning?


Justice White noted that Mann and Webb/Shirley didn’t disagree about whether the new language prohibited bank-insurance company interlocks.  What they did disagree upon was whether the original House version would have prohibited such interlocks.  The issue for White is: what does the statute mean without the “other than banks” language?  It means that bank-insurance company interlocks are covered!  Without that language, you just can’t be a director of two or more banks engaged in commerce.


With that in mind, we were asked to think about what the implications would be for the four approaches we’ve talked about.  Where would each of the justices come down in this case?  What is true about commerce today that wouldn’t have been true 50, 60, or 70 years ago with respect to banks?  We have an evolving understanding of what commerce is.  Commerce has become a more expansive concept, and things that in pre-1937 terms weren’t part of commerce now are part of commerce.


President Wilson signs this bill.  He says in this bill, “Thank goodness.  I can sleep at night now because I put an end to bank-insurance company interlocks.  Signed, Woodrow Wilson.”  Should we credit that statement as evidence of what the statute means?  What are the president’s powers with regard to legislation?  The president can sign bills.  The president can veto bills.  Anything else?  The president pushes an agenda.  The president can propose a bill, lobby for a bill, lobby for a change, or other stuff.  However, the act of the veto, introducing legislation or having emissaries testify mean that Congress has the ability to sort of “talk back”.  A veto can be overridden.  Bills can be modified or not.  The problem of a signing statement is that it’s a “last shot”.  It’s a gloss on what the president thinks he’s signing when Congress’s work is already finished.  The Reagan Administration was hot on these statements even though their counsel said that legislative history is a terrible thing.  Many people thought that it was troubling that the president could spin legislation without the possibility of more dialogue.


Montana Wilderness Association v. United States Forest Service – This is about statements by sponsors or drafters of legislation.  Sponsors of legislation tend to get preference as the most knowledgeable members in regard to a bill.  But colloquies can be manipulative.  Here, environmentalists are seeking to block construction of roads by Burlington Northern.  Here is another checkerboard grant!  Burlington Northern is the defendants here.  Why is the 1980 statute important even though it hadn’t been passed at the time of the district court decision?  It’s not Burlington Northern that’s appealing.  The case will either rise or fall on the 1980 statute, even though it was never litigated in the district court at all.


Does § 1323 apply to the whole country, or only Alaska?  The National Forest Service is not defined in the text.  In isolation, it looks like we’re talking about the whole country.  The name of the Act is the “Alaska Lands Act”.  The title refers to Alaska.  What else about the statute as a whole gives more information?  We have an act that is 50-100 pages long where every other section refers to Alaska.  How can we say that the only two paragraphs that are silent refer to the whole country?  What is true about public lands?  Is there a definition about public lands?  They are defined as only being in Alaska.  But the National Forest Service is not defined in the act.  Whether you call this “Whole Act” or “expressio unius”, why wouldn’t we attribute some meaning to the fact that Congress defined everything else, but not the National Forest Service?  Isn’t there something ambiguous here?  The judge in this case doesn’t marshal this argument.  Maybe he is a “soft textualist” by nature.  The judge goes through the rest of the statute to figure out whether there could be a different meaning here.  From our point of view, there could be a different meaning if we took “expressio unius” seriously.


But now we get to legislative history.  This section was added by the Senate Energy Committee.  But how much do we credit a statement after the bill has been sent to the president?  Did the member say anything during the course of the debate?  The casebook authors are sheepish.  Should the presence of a “Dear Colleague” letter written and sent while the bill was about to be debated on the Senate floor have any effect?  What’s a “Dear Colleague” letter?  If someone is proposing a bill, they will send a letter around saying why they think you should or shouldn’t vote for it.  Is that the only reason why a Senator or Representative might send around a “Dear Colleague” letter?  How are these letters handled when they come into a member’s office?  Do the Congressmen even read these things?  Who else might be seeing these letters?  Maybe the mailroom will see these letters.  There thousands of “Dear Colleague” letters circulated during each legislative session.  Most are preprinted and say something that might be substantive, but needless to say that people don’t really pay attention to them.  They’re also not specially recorded anywhere!  Once they’re written, they’re at the mercy of whoever files them.  There is a serious access problem as to whether courts or litigants can ever find them!


People are making broad statements about what § 1323 is without knowing that things are defined as applying to Alaska only!  That disqualifies a lot of what Seiberling and Weaver said.


We noted Friday that there are various reasons to discount the statements about an Alaska-only interpretation of the statute by Udall.  Also, the exchange of letters with the Justice Department was wholly private.  Maybe we can say the same thing about Melcher.


This is unusual!  The traditional view laid out by the notes says that the views of a subsequent Congress form a hazardous basis for finding out the views of an earlier Congress.  The two Congresses may have different members.  Why should we reject the traditional view here?  Did the legislature rely on a certain interpretation in making further legislation?  It’s unusual, which is why it’s in the casebook, but it’s also a case where members are paying serious attention to the way their conferees are acting.


Bob Jones University v. United States – It’s a highly uncontroversial case!  Do private schools that enforce racial discrimination under religious doctrine qualify as tax-exempt institutions under § 501(c)(3) of the Internal Revenue Code?  Well, gee whiz, I think…NO.  Until 1970, the IRS had granted tax-exempt status without regard to racial discrimination.  But then the IRS changes their policy.  On the face of the language of § 503(c), which side of the debate is favored?  Rehnquist seems to have a good argument in dissent.  Where does the legislative history point here?  The legislative history shows that Congress had been adding on more and more exemptions.  There’s nothing to show that Congress is taking on common law “baggage” that says we won’t go against public policy.


What has Congress done since 1970?  Burger is looking at this in the early 1980s.  We have 10 years of Congress’s response to the IRS ruling.  What if the IRS had said that they would give special tax advantages to racial minorities to make up for past discrimination?  Would that reflect our “national understanding”?  The IRS has some rule-making power, but it probably isn’t that broad.  What is Congress’s reaction to the revenue ruling?  If the IRS is a spokesperson for public policy, they were also the spokesperson for the wrong public policy for a long time.  Is Congress’s inaction a useful guide?  We have 13 different bills over a 12 year period where Congress had the opportunity, and debated the possibility, of amending § 501 to contradict the IRS.  But they didn’t do it.  However, they did amend § 501 to do other things.  The Court says that we have intense awareness by Congress of what the IRS did plus inaction, which leads to the conclusion that they accepted the ruling.


Did the legislative branch endorse the IRS’s change in position in 1970?  There is at least an argument that they did.  There was inaction in the face of constant attempts to revise § 501.  This is “positive inaction” of the form we saw in Flood v. Kuhn.


Tomorrow, we’ll think more about what § 501 (i) really means here.  What is Rehnquist’s comeback?  What if Congress tried to pass § 501 (i) but failed?  Then we’ll deal with the harder question of what the public policy is that we’re trying to wrap ourselves around.  Is there a policy against racial discrimination in private educational facilities?


What’s the importance to the majority of the enactment of § 501 (i)?  Has Congress acquiesced in the anti-discriminatory position taken by the IRS in 1970?  The best evidence in legislative history terms from the majority’s point of view is that both the House and Senate reports accompanying the § 501 (i) provision cite Green v. Connally with approval.  That case established that discrimination on account of race is inconsistent with an educational institution’s tax-exempt status.


Why didn’t the Congress act to actually change the statute?  Who is in favor of the majority?  Did Congress acquiesce?  Should that acquiescence be given force by the Court?  Congress had this high on its radar screen for 12 years, but didn’t act.  Is this an example of “positive inaction”?


Two different kinds of inaction have different amounts of value?  Why might you value one more than another?  How do we differentiate?  There are thousands of bills introduced into the legislative process.  Things happen, things don’t happen, but the Court puts a lot of weight on this particular instance of inaction.  How come?  What are we assuming is true for a failure to change a ruling that’s been reviewed in committee or hearings 12 times in 15 years as opposed to a failure to change a ruling that has no committee hearing or anything else?  We assume that the leaders who are involved in processing legislation know about it.  If it’s come through committees, then the leaders know it’s going on.  Legislative inaction is a stable part of the process.  More stuff doesn’t happen than stuff that does happen.  People introduce bills upsetting the status quo all the time!  If these bills don’t get taken up by a committee, you can’t assume that this is an endorsement of the status quo.


The ruling is correct on its merits: the tax-exempt status mustn’t operate against public policy.  But what is public policy in this area?  Does public policy eliminate all discrimination in education?  Does the Constitution prohibit racial discrimination in private education?  Who is being regulated under the Constitution?  It’s the government!  No government can deny equal protection or due process of law.  Private individuals are not regulated by the Fourteenth Amendment!  You could decide that any time there are tax benefits or burdens, there is state action.  Then you could possibly have a constitutional challenge to every form of tax benefit or burden that exists!  In the context of education alone, we know that the government doesn’t regulate private institutions the way that they regulate public institutions.


So then we have these federal statutes.  We have the Civil Rights Act, the Voting Rights Act, plus some executive orders.  Does the Court suggest that any of these laws prohibit or restrict racial discrimination by private schools?  We’re not talking about policy, we’re talking about positive law.  The Constitution doesn’t protect minorities or women from being discriminated against in private educational institutions.  None of the statutes mentioned prohibits racial discrimination in private education.


What else is in the 1964 Civil Rights Act besides Title IV and VI?  What else have we studied?  I dunno.  We’ve studied Title VII, which deals with employment.  Who does that Title affect?  This Title talks about private employees.  This is the biggest civil rights statute of the 20th century.  Congress doesn’t include private actors in some of the Titles.  The Congress insists on a government axis in education that it did not insist on for employment.  You can argue that Congress knows how to ban private discrimination by private entities but chose not to do so.  The public policy we’re trying to build does not “jump off the page” of the Civil Rights Act.


The Supreme Court is writing for the history books and not just for the case books and the reporter.  The Court insists on resolving this in the broadest terms and not just in narrow legal terms.  There could have been arguments crafted differently, but the Court isn’t doing it.  You might criticize it on legislative inaction terms.


What’s the difference between Moragne and this situation?  The previous situation was a common law situation, but this is a statutory situation.  We have a canon that the Court could have used, which is the canon to avoid constitutional problems.  How could you build an argument for the majority based on that canon?  If you’re going to avoid the constitutional problem, you would try to construe tax-exempt status as equivalent to a federal grant.  In order to avoid that, we will simply decide that when the government grants tax-exempt status, it can’t do it for anything that the government itself couldn’t have engaged in.  Would that be fair?  When the Court is recrafting a statute, it’s doing it because it’s trying to avoid a constitutional issue.  The courts have choices in situations like this and could have gone a more “lawyerly” way.  But in this case, they are writing on a much more expansive “palette”.


Interpretation in light of other statutes


Why should we bother to look at other statutes?  We want to make law consistent with respect to our choice of language.  Why would an imaginative reconstruction judge like Posner be unhappy about looking at other statutes?  What does an imaginative reconstructionist think about?  What makes someone skeptical about borrowing from another statute?  If you start borrowing from another statute, you run the risk that you’ll graft onto the deal something the dealmakers weren’t thinking about.  The more you think about a statute as a sui generis deal, the more you run the risk of undercutting the deal.  If you don’t uphold these deals, the deals might not get made, and that may not be desirable.


Textualists like the linguistic context approach of invoking similar statutes.  Scalia talked a lot about other statues in Casey v. West Virginia.  People who agree with dynamic interpretation may approve in the sense that statutes build upon one another.  We can find a policy that develops from a succession of similar statutes building in a certain direction.  Casey is an example of a case where Scalia believes they knew how to say “experts”, so if they don’t use that word, it means something.


Cartledge v. Miller – The plaintiffs are pension plan committee members.  They seek a federal injunction against Cozart for assigning his benefits to his former spouse.  The named defendant in the case is the judge who issued the order to assign the benefits.  The judge here holds that ERISA does not preclude a court from enforcing family support rights.  Is this a super-strong clear statement rule that nobody knew existed before?  This is a pretty strong presumption that he’s positing.  This judge puts a lot of weight on a DC Circuit case.


Lorillard v. Pons – Does the ADEA give the right to a jury trial?  The FLSA provided the right to a jury trial.  We have jury trial rights under Title VII.  Sometimes there’s a reason the original deal looks a little different because of what people are worried about.  Congress was careful to draw not from Title VII in procedural terms.  There are reasons to think they did it, and reasons to think that they didn’t do it.  It might have been perfectly sensible to avoid copying Title VII in just one respect.  “Legal relief” is, historically, a Seventh Amendment term.  That’s where you get a right to a jury trial for damages.  Equitable relief has been, historically, judge-given.  The equitable relief under Title VII does not entitle you to a jury trial.


Morton v. Mancari – Subsequent statutes can be a way for guidance to earlier statutes.  But it’s not always the case.  Here we have an Indian Reorganization Act.  Plaintiffs who are not Indian changes the hiring preferences as being against the Civil Rights Act.  We’re looking at Title VII as an integrated statutory scheme.  Why should we assume that they meant to do it in 1972 when they didn’t do it in 1972?  That’s a pretty robust argument.  It may not prevail, but it’s certainly not trivial.  The Court wonders why Congress would have given preferences in teacher training programs for Indian children if they haven’t already recognized that these preferences are permissible with respect to government programs.


Administrative law and statutory interpretation


Courts traditionally have tried to protect their common law powers from encroachments from legislatures.  And then courts may be more suspicious of agency rules because they lack the same democratic lineage that legislatures have.  Agency rules are not issued directly by elected officials and don’t always involve the kinds of public participation that we see in the legislative process that tends to legitimate action by government.  Should agencies or courts have greater authority in interpreting statutes?  That’s the big question in the modern age of administrative laws.  Some statutes are enforced directly by the courts.  Some statutes establish administrative agencies to make rules and then enforce them.


The basic or traditional approach of Udall v. Tallman is that courts give a lot of deference to the agency that is charged with the enforcement of a statute that is being interpreted.  We give special deference when statutes are “untried and new” and there is a contemporaneous construction issue.  Why?  Is that more a matter of expertise in legislative intent or expertise in subject matter?  Let us focus on the intent issue, which seems particularly salient when we are within “hailing distance” of what Congress is thinking.  A key assumption in the BankAmerica case is that contemporaneous rules are more authoritative because they are issued closer to the time of enactment.  Is there any special problem with giving deference to the agency based on the agency’s perception of what statutory intent is?  Why should we assume that agencies are completely neutral?  The agencies may be partisan!  They may be subject to outside lobbying.  Maybe the administration didn’t even support the bill.  Sometimes the agency may have opposed the bill, and thus it’s in their interest to interpret it in a watered-down way.


About whose legislative intent is the agency a likely expert?  They are probably most aware of what the committee is thinking.  They probably didn’t spend much time dealing with the rest of the House and Senate.  Depending on how much you want to credit committee reports, you may be okay with this.  But if you are like Scalia, for example, and see the committee process as being prone to manipulation, you might be concerned about agency communication when it’s based on communication with committee staff.  This is what public choice theorists call the “iron triangle”: committee staffs, agencies, and interest groups who can create a particularly favorable statutory interpretation and then defend it over time.


If contemporaneousness is a proxy for legislative intent, is there an aspect of the agency’s regulatory approach that should enhance or improve our view that they really are competent?  What makes us comfortable with their competence?  They have a process!  They give notice and they ask for comments from the public.  It’s not as politically accountable as the legislative process, but it does have a sort of democratic pedigree to it.  You won’t get a rule adopted just by announcing it.  You issue a preliminary rule, you invite interested groups to comment, and all of this generates a public record that courts can review.


Insofar as they have stood the political test of time, there is an implication that Congress has acquiesced in the rule.  If there was something particularly troubling about a rule, they could have used their power to revisit it.  Also, the public begins to rely on a long-standing rule.  If the court abrogates the rule, they could upset the reasonable expectations of many people.


General Electric Co. v. Gilbert – Rehnquist is writing this opinion.  Why don’t we defer to the EEOC guidelines of 1972?  When Congress says: “We charge you as an agency to promulgate rules to further the purposes of this Act”, the agency must go ahead and do that.  The EEOC didn’t have that authority under Title VII when this case was decided.  The EEOC was supposed to do many things, but their authority to issue guidelines and interpretations was more limited because they weren’t given formal rulemaking power.  The standard is dependent on how consistent you’ve been.  We want to know if the agency is consistent in its pronouncements.  Why does the agency fail here, according to Rehnquist?  We have had a series of divergent interpretations about whether pregnancy is covered in this situation.  The EEOC changed its mind over a period of time.  Is Skidmore the “kiss of death” in terms of getting your guideline sustained?


Chevron, U.S.A., Inc. v. Natural Resources Defense Council – This is the major and still controlling Supreme Court statement of the role of agencies in statutory interpretation.  This one concerns the EPA’s interpretation of the Clean Air Act.  What is the two-step test that the Court sets forth for when a court should defer to an agency’s construction?  If Congress has spoken directly to the issue, we override the agency and there is no deference.  But if Congress has not spoken directly, and the statute is silent or ambiguous with respect to the particular issue, then the court must ask “whether the agency’s answer is based on a permissible construction of the statute.”  That sounds like a pretty low level of scrutiny.  Regulations are given controlling weight unless the construction is impermissible.  If the construction is “arbitrary, capricious, or manifestly contrary to the statute”, then the court can override the construction.


For this form of deference, is the Court relying on traditional justifications for trusting agencies?  No.  This reverses the traditional notion.  By default, the courts will defer to agencies.  In circumstances where the legislation is not clear on its face, agencies have more legitimacy than courts in being the primary interpreters.  That’s a big step, and a sea change in the way courts look at agency actions.  Agencies have been allowed to have a special perch because they are either experts on legislative intent or have special expertise, but now the courts find that agencies have an even more privileged positions than the courts do!


The court recognizes three reasons why a statute might be ambiguous: (1) Congress may intend to have the agency strike the balance.  (2) Congress may have ignored the issue entirely.  (3) Congress may have failed to strike a balance and thus agreed to leave it blank.  But it doesn’t matter for judicial purposes which of these things occurred.


Babbitt v. Sweet Home Chapter of Communities for a Great Oregon – Both sides use many interpretive tools in support of their position.  This is kind a good review mechanism.  The case arises under the Endangered Species Act which forbids anyone from “taking” an endangered species.  There are many definitions of the word “take”.  A regulation interprets “harm” pretty broadly.  The appellate court held that the regulation exceeded the agency’s authority, but the Supreme Court reverses.


Stevens invokes textual analysis to support the Secretary’s approach.  How does he do that?  This is a variation on the surplusage canon or the Whole Act Rule.  If all harm does is to reiterate what the other words mean, then why would they have put it in?  It must go beyond the other verbs and say something different than the other ones say.  What does Scalia have to say about the other verbs?  He says that they are all affirmative, intentional acts rather than omissions or negligent behavior.  But what about “harass”?  That could happen indirectly.  Some of these verbs may be broader than simply intentional.  What about “wound” or “kill”?  Can’t you do that unintentionally?  Is this a list that is sufficiently consistent such that we should “fold” harm into the other ones, or does each verb actually add something to the mix?  If Prof. Llewellyn was looking down on this debate, he would be pleased.  He would argue that this shows that the canons are totally bogus!


What else does Scalia argue about in his dissent as part of his textual justification?  He has a series of arguments that support, in his view, the conclusion.  Recognize that this is a debate about whether the statute is so clear that the agency has no discretion to implement its own interpretation of the statute.  Scalia’s position is that this is so clear that the agency has no discretion and they got it wrong.  Stevens’s starting point is that it’s so clear that the agency is acting according to the intent of Congress that they’ve got it right.  Each justice thinks the statute is clear; they just think it’s clear in opposite directions.  So just what does “take” mean?  Where can we go to find out?  We can look at other statutes, for example.  We don’t know how they defined “take” in other statutes.


Here is a really important and classic Chevron move: Stevens says the statute is clear, so they win on stage one.  But you can argue that the statute is actually ambiguous.  Congress wasn’t manifestly clear.  We should go on to stage two!  And at that stage, the agency has a lot of discretion.  And what about the intent and purpose from legislative history?


Scalia spends a lot of other opinions refusing to consider legislative history at all.  But he wades into that fray here.  Scalia thinks it’s clear from the legislative history that they wanted the active definition of taking.  Does he do this without acknowledging his usual view on this subject?


There will be three essay questions that are similar in approach to the exams on reserve.  There are about five exams available.  The first question will be a very long hypothetical.  Don’t assume that it tracks real-world substantive law.  It will include statutes, legislative history, and stuff like that.  You don’t need substantive knowledge about the area of law tested.  We will need to apply common sense and statutory interpretation tools.  We’ll be asked to argue both sides of the issue, just as a lawyer would.  We must construct a persuasive case for both the petitioners and the respondents.  There will be plenty of arguments to be found on both sides.  A strong answer for either position will make the best affirmative case for your own side that includes text and context and also briefly deflect or discredit the best argument for the opposite side.  You can’t ignore the other side’s position if they have something highly creditable or may be viewed as such.


As a lawyer, we’ll make as many arguments that we thing are persuasive to make for each side.  There’s a thick handful of arguments on each side.  Some allow you to go more in-depth than others.  Some points may be more persuasive than others.  You also must argue the question as an attorney and not a theoretician.  Do it the way courts do it.  Your philosophy should not inform your answer to the first question.  If you think one side has stronger textual arguments, make those arguments.  But don’t inject your philosophy in this question; you’ll get your shot in question three.


There is a second, shorter essay question that will also give a factual pattern.  It will deal with bribery, lobbying, and campaign finance and will have a substantive focus.  We need to know the effects of the BCRA.  We only need to know about the provisions we studied in class.  The third question will be the normative question.  We will be asked to jump into the fray of a philosophical question.  We may refer to cases that we’ve read or theories that we’ve studied.  Brudney will ask us to react to something that’s “out there” and apply it.


Brudney is looking for issue spotting, analysis of the issues, and strong organization.  The test is open book and open notes.  You may look something up if you want.  You can use a computer, but you must turn in the printed examination at the end of the exam time.  You get a little less time because you have to go and print.


Brudney will be around the next couple of days and will have special office hours coming up.  If you want to talk about old exams, feel free.  Brudney will be out of town Thursday and Friday.  He’ll even come in Saturday morning if anyone wants to talk.


Smiley v. Citibank – This is yet another agency interpretation post-Chevron application.  We have this “National Bank Act”.  National Banks can charge out-of-state credit card customers a higher rate than in-state customers.  But can the banks charge late payment fees that are legal in their own state but not legal in the cardholder’s state?


Is this a “step one” or a “step two” problem under Chevron?  They say that the statute is ambiguous, and thus the court must show deference to the agency’s interpretation as long as it’s not too far off the mark.  Scalia concludes that the word “interest” is ambiguous.  Does he reach that conclusion based on his own analysis, or based on something else?  He starts out by saying that this can’t be a “step one” problem because “interest” is ambiguous.  This is kind of like the Stevens/Scalia debate about the word “take”.  He presumes that the statute is ambiguous due to the dissenting opinions in lower court judgments.


If you look at the Casey decision, Scalia wrote this opinion for the majority as well.  That case involved whether expert fees were included in § 1988.  Did Scalia conclude that a conflict in the lower courts was per se evidence of ambiguity in the text?  He concluded in that case that the statutory phrase was unambiguous even though Posner had a Seventh Circuit opinion suggesting the exact opposite.  Why is Scalia more willing to posit ambiguity here?  What’s the default rule?  We’re talking about reasonable attorney’s fees in Casey and we have a split in the Circuits.  Here, we have a term that no court has disagreed with the Supreme Court’s view, yet we still find the word ambiguous.


Casey was not an agency case.  In that case, the Court was avoiding looking at legislative history.  Scalia hates legislative history!  In Casey, the statute is directly interpreted.  If the statute is sufficiently unambiguous, we don’t have to look at legislative history.  If the statute here is ambiguous, we look at the agency interpretation, not legislative history.  So going to “step two” depends on whether the Court is willing to review, with rigor, the textual argument.  In this case, Scalia is not prepared to do that.  That doesn’t mean that he will always find clarity when the alternative is legislative history and that he won’t find clarity when the alternative is agency analysis.  So look at what “step two” involves and that can give you a clue as to whether you’ll get there.  Scalia thinks that the text is clear most of the time.


In part III, Scalia decides that it’s reasonable that late fees are included in the definition of interest.  He relies on really old law dictionaries.  Did those sources expressly include late fees within their definition?  Nope.  There’s no reference to credit cards.  We’re looking at compensation that is paid to the lender by the borrower for the use of the money.  The failure to reference late fees doesn’t mean that they’re automatically included.  They may have automatically been excluded as usurious.  It might have been useful to look at modern dictionaries, especially because a 1995 regulation is at issue.  If there had been some reference to contemporary dictionaries, the Court might have said that it’s not the preferred meaning, but it might not be so wacky as to be an unreasonable interpretation.


The petitioner makes several arguments for why the ordinary rule of Chevron deference should not be followed.  First off, the regulation was issued very long after the original statute was passed.  But Scalia says that this doesn’t matter.  This is a reminder to us that Chevron has changed the terms of why it’s legitimate to refer to an agency.  The litigant says that you can’t rely on this because it’s 100 years old!  Why is age or length of time not discrediting anymore in the Chevron analysis?  Congress left ambiguity in the statute so that the agency could interpret it over time.  What’s new in Chevron is the Court’s view that the executive branch is also a politically-accountable branch that deserves deference unless its interpretations are patently unreasonable.


Lastly, why is the inconsistency in the agency position okay?  What’s the justification for an agency change of position?  Does the Court say that Chevron allows for changes in the agency’s thinking over time?  Sure, if there’s a good reason for them to change it, then they should.  What’s a good reason?  Change isn’t bad per se.  How would the dynamic school of interpretation react to Scalia saying that changes in agency interpretation as long as they’re not sudden and unexplained?  They would like it!  Agencies are given a wide berth to update based on the circumstances, assuming that they are accountable politically in a way that courts are not.


So we’ve covered the practical aspects of interpreting statutes.  Brudney proposes that legislatures have some kind of coherence.  In legislation, as in almost any other area of the law, the world turns out to be very complicated.  Bright lines and per se rules would be nice, but human conduct isn’t nice or neat.  It’s full of all sorts of complex cross-currents and messiness.  Our job will be to make sense out of the messiness on the exam and in real life.


Source: http://www.fecwatch.org/law/fedfundsreq.pdf



Federal Funding Requirements for Election-Related Communications


Type of Communication

more explicit candidate support less explicit candidate support


Express advocacy communication

Expressly advocates the election or defeat of a clearly ID’d federal candidate

Federal election activity communic.

IDs a federal candidate and promotes, supports, attacks or opposes that candidate

Electioneering communication

Broadcast communic. that IDs a federal candidate w/in 30 days of prim. / 60 days of gen'l election and is targeted at 50,000 constituents

Coordinated communication

IDs a federal candidate or party within 120 days of the election, is coordinated, and is directed at constituents

Other communications

(anything less explicit)

National Party

federal funds

(amount unlimited unless coordinated with a candidate)

FEA definition not applicable to national party committee activities

(see other boxes)

EC definition not applicable to national party committee activities

(see other boxes)

federal funds

(also a contribution to candidate; dollar amount limited to candidate contribution limit)

federal funds



Local party

federal funds

(amount unlimited unless coordinated with a candidate)

federal funds

(amount unlimited unless coordinated with a candidate)

EC definition not applicable to state and local party committee activities

(see other boxes)

federal funds

(if not coordinated, a mix of federal and Levin or federal and nonfederal funds may be used.)

nonfederal funds permissible



Labor union

prohibited unless federal PAC funds used

(with one exception1)

FEA definition not applicable to corporate or labor union activities

(see other boxes)

prohibited unless federal PAC funds used

(with one exception1)

prohibited unless federal PAC funds used, then amount limited to candidate contribution limit

nonfederal funds permissible


If costs exceed $250 per year, must be reported to FEC

FEA definition not applicable to individuals

(see other boxes)

permissible, but may not use funds received from a corporation or labor union (other than salaries).


(also a contribution to candidate; dollar amount limited to candidate limit)

nonfederal funds permissible


1 The Supreme Court has said nonprofit corporations with certain characteristics may expressly advocate the election or defeat of candidates. FEC rules also allow these corporations to make electioneering communications.

Source: http://www.opensecrets.org/basics/law/index.asp

Federal Campaign Finance Law: New Contribution Limits


To any candidate committee (per election1)

To any national party committee (per year)

To any PAC, state/local party, or other political committee (per year)

Aggregate total

Individual can give2:

Old law:



$25,000 per year

New law:
$2,000, subject to aggregate limit


$25,000 per party committee, subject to aggregate limit



$10,000 to each state or local party committee (Levin funds)4

$5,000 to  each PAC or other political committee, subject to aggregate limit



$95,000 per two-year election cycle as follows:

· $37,500 per cycle to candidates; and

· $57,500 per cycle to all national party committees and PACs (of which no more than $37,500 per cycle can go to PACs)

Multicandidate committee can give5:

Old law:



No limit

New law:




Other political committee can give:

Old law:



No limit

New law:




1 Primary and general elections count as separate elections.

2 Individual contribution limits under the new law will be indexed for inflation.

3 Individual contribution limits under the new law are higher to candidates facing wealthy opponents financing their own election.

4 Levin funds also can come from corporations and labor unions if allowed by state law.

5 Multicandidate committees are those with more than 50 contributors, that have been registered for at least six months, and (with the exception of state party committees) have made contributions to five or more federal candidates.