Legislation
Class Notes
More on the “benign fiction”
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
§
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