Spring 2009 1 LEGISLATIVE INTERPRETATION Discuss all provisions, even if it s just one sentence w/ minimal facts and why it would not apply Definition at the time of statute Research if there could be a constitutional issue Cost/Benefits Distributional Issue (see the table) Normative moral judgment is included Dispositive not the only conclusion Statutes are not written discursively, they re written canonically Difficult questions are when the textual, historical/intuitional, current/practical/functional don t point in the same direction. Don t forget to CONCLUDE Start with a paragraph with a sentence each on why those provisions do not apply. You do not want to ignore any provision in this statute. Include anything and everything relevant without being repetitive to get the most points. o The reason A2 does not apply is that there is no evidence that the father was attempting to disable the child. There is an argument that the child s brain and nose were injured, but it does not seem that the father was attempting to cause these injuries. Also slight argument that he intended to destroy the vocal cords, but not permanently. A4 does not appear to apply because there was no car involved in this incident. Steps for Answering 1) DISCUSS ALL POSSIBLE STATUTES (don t leave anything not discussed.) 2) Parse the statute look for parsing that can lead to both interpretation (grammatical, title of the statute, etc) 3) Plain language a. Plain meaning is the most obvious and probably the most objective way to know what the law requires of us and it often will provide an acceptable resolution to easy controversies. b. Plain Meaning 90/10 i. Caminetti virtually inapplicable today, but cited recently so no rules are hard & fast. Judges use the rules that allow them to get to result. Under this strict interpretation if there is an absurd result (tomato is a fruit) it doesn t matter. Thomas just used it in Carcieri v. Salazar - Indian Reorganization Act case that Frickey wrote an amicus brief c. Ordinary Meaning 60/40 i. Dictionary definition for common, contemporaneous v. historical meaning/dictionary, unless it s a term of art, then use technical meaning there s a canon for this (Holy Trinity used historical definition of laborer) ii. New Textualism (Scalia) d. AVOID absurd results (Bock Laundry Scalia even agrees) i. If under the parsing, it may be clear enough for plain/ordinary meaning, you don t go to legislative history. But if ambiguous or absurd (after using canons) the
Spring 2009 2 legislative history is allowed. Scalia would reformulate the statute in a way that way does least violence to the text. e. For my memo I would want to at least examine the leg history because many judges will turn to this, and consult relevant agency regulations. i. Courts practice in recent past is that a plain meaning can be overcome by compelling evidence of contrary legislative intent, so I would want to check the plain meaning against the legislative background. 4) State where each side needs to get to on the funnel to succeed in their arguments. (they both have to do the plain meaning first) 5) Canons Specific & Policy Canons o Textual canons Noscitur a sociis Egusdiem generis in adding the words any other the Legilsature intended to include only other. Which also have...to the list Do not constitute such Rule against surplus - If you read this down by (NAS or EG) then you are reading down the statute and that against the rule against surplus. Every statutory term adds something to a law s regulatory impact. Specific trumps the general Inclusio unius est expressio alterius (the inclusion of one thing implies exclusion of all others) more plausible if list was debated and/or amended Last antecedent referential and qualifying words refer only to the last antecedent, unless contrary to the statutes punctuation or policy. And/or May/shall Semicolon limits the modifier (comma does not) Ordinary meaning trumps technical, unless it s a term of art Whole act rule presumption of statutory consistency Coherence arguments may be invoked more tentatively across statutes. Canon of negative implementation term is used in another section of the statute, but not in the disputed. Omission is presumed purposeful. Llewellyn - For every canon, there s a counter-canon Sweet Home shows many of the text-based canons in conflict Even the most classic citations for text-based canons of construction are not just mechanical applications of textual conventions, but they also, and often predominantly, involve normative judgments. o Policy/Substantive canons Clear statement rule, presumption, tiebreaker Avoidance of Constitutional Question Federalism Question (judges forced retirement) Rule of Lenity Not just for criminal, for anything that s punishing Presumption or tie-breaker (probably not clear statement)
Spring 2009 3 Congress should presume to know common law understanding of words (ex. mens rea in civil statute) Remedial statutes are to be construed broadly Waivers of sovereign immunity should be narrowly construed Scrivener s error (in re Jacob, Bock Laundry) not attributed to any legislative deliberation on the issues or a conscious policy decision Reenactment w/o change presumes ratification of judicial interpretation Repeal by implication are disfavored (dog didn t bark) (Chisom) o Under the circumstances one would expect to see legislative explanation if amendments were also designed to cut back the statute s application. Since there is none, the legislative silence supports a broad interpretation, consistent with the former interpretation. o Unless it is evident from the plain meaning of the subsequent statute, then SCOTUS declines rule against implied repeals and if evokes primacy of the last enacted statute. Modeled Statutes specifically modeled after another statute, presumed they are knowledgably of other interpretations. In pari materia if later statute covers same subject material as a former statute, courts presume that Congress knew of the former interpretations Borrowed Statutes stolen from other jurisdictions. Robust in state courts (but not bound by the other state s interpretations because public policy of their state is sufficiently different from that of the originating jurisdiction Heightened stare decisis for common law decisions (I d want to see if SCOTUS has examined this statute) o As the transactional model of legislation suggests, it is virtually impossible to override a precedent unless powerful interests groups support the override. 6) Specific Intent a. Roscoe Pound - Specific intent is encoded in the legislative history i. Specific/actual intent for this problem by that legislative body b. Problems with aggregation (legislative intent is not only a collective intent, but a coincidence of at least two different collective intents) c. Problems with attribution Should focus on the preferences of the pivotal legislators participating in the enactment process whose support was critical in helping a gill go through the various vetogates that could kill it) i. Asking what the key players were trying to do, and assuming that these people are reasonable people acting reasonable (honorable reasons for their decisions). d. Max Radin: intention of the legislature is undiscoverable 7) Imaginative Reconstruction (historic) a. If specific intent is impossible because legislation would not have anticipated this issue i. Not a very strong theory, b/c it depends on how you frame the issue 8) Legislative Purpose (General Intent) a. Hart and Sacks mischief to be addressed. What was the statute enacted to bear with
Spring 2009 4 o Interpret statute so as to carry out its purpose, BUT 1) don t give words a meaning they can t bear and 2) a meaning which would violate established policy of clear statement Use the other tools of interpretation to generate the plausible organizing purposes that one should consider attributing to the statute, then consult the legislative history only to ascertain whether it suggests a plausible purpose that you missed the first time around or whether it helps resolve doubts about which of several plausible purposes should be preferred. o Assumes legislators are reasonable persons pursuing reasonable purposes reasonably ;; law is rational (normative assumption) o Weber court justified its allowance of affirmative action by relying on Congress general intent, or its purpose in enacting Title VII. o Holy Trinity is a leading purposivist authority, invoking the spirit of the act. Normative, rather than formal or historical arguments, were probably more decisive in these two cases. o Rebuttals oversimplifying the statute s purpose and/or suppressing a possible competing purpose 9) Evolution of the Statute a. Dynamic statutory interpretation (female jurors) 10) Current Values Policy 11) Agency Deference a. Skidmore or Chevron i. The court should defer if the agency is exercising its delegated rulemaking authority (Chevron) but perhaps not defer if the agency is acting informally (Skidmore) b. Chevron is 1) has Congress directly spoken to the precise question at issue. If the intent of Congress is clear, then the agency interpretation must give way to the unambiguously expressed intent of Congress. 2) If the statute is silent or ambiguous with respect to the specific issue, then the court defers to the agency s interpretation as long as it s a permissible construction of the statute. i. The court s pronouncement is that the clear intent of Congress should prevail above all else. ii. The court employs traditional tools of statutory construction to determine if Congress has an intention on the question at hand. (New Textualism is potentially trumping Chevorn too often by the first prong) 12) Further research needed to be helpful 13) Conclusion
Spring 2009 5 THEORIES OF THE LEGISLATIVE PROCESS I. Pluralist Theories (the role of interest groups in policy making) A. Descriptive 1. citizens organize into groups for political action ( factions ) 2. interest group politics results in pluralism the spreading of political power across many political actors. 3. politics can be conceptualized as the process by which conflicting interest group desires are resolved. B. Interest Group Liberalism: Pluralism as a positive political force. 1. Rather than fear factions, we now rely on large, organized groups to play a large role in the political process. a. Political parties provide a structure for governance and information for voters b. churchs, unions, may become involved in politics as a secondary matter to improve their members lives. 2. Theodore Lowi see the prevalence, strength, and diversity of interest groups as a sign of political health. The groups act as checks against each other. Constituents may use interest groups to signal the intensity of their preferences is a way not possible by voting. 3. Main benefits of Pluralism: a. Interest groups may protect us from a strong and tyrannical gov t b. the result of a robustly pluralist system will be moderate and well-considered policies. c. Interest groups represent the most meaningful possibility of participation by individual citizens. C. Public Choice Theory: Interest Groups as Pernicious Political Influences 1. Their may be disparate access to the political process; business voices are overrepresented and the broad public interest and the less advantaged are underrepresented. 2. See CHART BELOW; If concentrated benefits/distributed costs, argue that the state should be interpreted narrowly to protect the public interest, if text is ambiguous. D. Interest Group Theories: Explanation and Critique 1. Public choice theory explains the success of distributive policies that pass out goodies to many interests at the same time: such as tax bills that offer loopholes to many groups, defense appropriation bills that send $ to many districts, etc. Here, the losers may not even be alive, if deficit-spending is used to put the burden on future generations. 2. Regulatory Policies these cause groups to fight over a single prize (EX: winning a television channel permit) 3. Redistributive Policies similar to Redistributive policies, but the classes are much bigger (e.g., rich v. poor) 4. CRITIQUE a. Not all legislators are rent-seekers looking for financial rewards from special interest groups; they have independent beliefs and legislative goals. b. Interest group $ may be more effective at electing members who share their beliefs than changing lawmakers minds c. Interest groups are better at blocking legislation than passing it, and are more effective w/ legislation that has low visibility than when legislation is well known.