Legislation
Class Notes
More on Jacob
What
is the relevance of the political realities of the time to the Court of Appeals
of
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
Li v. Yellow
Cab of
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
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?
The
set of facts is complicated, according to Brudney. I didn’t think it was that complicated.
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.