Legislation
Class Notes
More on Blanchard v. Bergeron
Why
does the majority doubt that Congress subscribed to that particular part of Johnson?
Does the Court say that contingent fees are just a factor, or more than
just a factor? There 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.
Armstrong
and Dole are arguing about committee reports.
In re Sinclair
The
Sinclairs file a Chapter 11 bankruptcy. They want to change to the new Chapter 12 for
farmers. The district court and
bankruptcy court refuse. They rely on §
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.