Legislation

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Stare decisis

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Threshold question. Vertical SD is not controversial--lower courts are bound by decisions of higher courts. Horizontal SD--being bound by your own prior decisions--is trickier. It still exists, but you can also overrule them (never very clear when/what criteria to apply).

Baseball example: SC says in 1922 in the Baseball Club Case that the Sherman Antitrust Act doesn't apply to baseball; they use the saving canon because at that time MLB wasn't "commerce" within the meaning of the constitutional phrase and so it would have been unconstitutional for Congress to try to regulate it. Then 30 years later Toolson still sticks with precedent, and then again later in Flood v Kuhn. Why?
1) Congressional acquiescence
2) Reliance
3) There would be huge retroactive effects (yeah, they could make their decision prospective-only, but they hate to do that)
4) Congress should determine the remedy (aka an invitation to override)

Kuhn also points out that SD has extra force when talking about statutory, as opposed to constitutional, interpretation. One reason for this is acquiescence.

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In pari materia

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Threshold question. Latin for "on the same subject." Statutes that are in pari materia should be construed similarly. Think of it as Congress passing a statute, courts interpret it, and then Congress passes another statute that either uses the same language or in some other way interacts with the first statute. How does the first statute's interp inform the interp of the second, related one? IPM obviously happens when there's explicit textual cross-reference. But it can also apply when policies behind two statutes overlap.

This is like reenactment but across statutes.

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Ordinary meaning canon

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Basically the common sense canon. If it gets tough, consult a dictionary (but make sure it's one that's roughly contemporaneous with the passage of the statute at issue--and careful: Scalia hates Webster's Third!).

Nix v Hedden talks about what happens when common usage and dictionary definitions diverge. Is a tomato a fruit? Even though dictionary says yes, common usage is settled that we consider it a vegetable so that trumps the dictionary.

[descriptive]

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Presumption of consistent usage

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if a term means one thing in one part of a statute, you should assume it means the same thing elsewhere unless there are clear indications that it means something else there.

[descriptive]

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Presumption against superfluity

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If a statute can be read in two different ways, and if one such interpretation renders the provision itself or something else in the statute superfluous, that is typically a reason to favor the other interpretation.

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Presumption against implied repeals (linguistic tool)

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Rule: linguistic indeterminacy on the face of a statute should be resolved in favor of the interpretation that harmonizes it with prior statutes (which it might otherwise repeal).

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Statutory interpretive directions (re: pre-existing statutes)

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If Congress passes a bill that tries to say any time any Congressional statute ever passed meant X when it used the word 'discriminate.' Courts might well follow this because Congress might well be better at (or at least as good as) understanding Congress's intent even in the past. Or you could understand the current statute as just amending ALL the old statutes, not just putting a different gloss/interpretation on them.

Bottom line: Courts often take this into account. These are clues for judges trying to get the right answer.

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Statutory interpretive directions (re: future statutes)

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What about for statutes that haven't even been passed yet? Rowland is a case from CA where there's a council for prison inmates that want to sue the warden and want to proceed in forma pauperis because they have no money. The statute says a "person" must "make[] affidavit" that such person cannot pay fees and costs and then may "commenc[e], prosecut[e] or defend[] any suit action or proceeding without prepayment of fees and costs. It used to say citizen but now says person because they wanted to include non-citizen immigrants. The court can also appoint an attorney to represent the pauper if they want to. The dictionary act (1 USC S 1) says that "person" includes associations and corporations. But the majority says this association is not a person for purposes of the statute. Why?

Dictionary act does specify that the presumption that if the context indicates otherwise the definitions there don' have to control. Court gives four reasons why context does so indicate:
1) "Poverty" is a human condition; corporations can't be suffering from poverty.
2) There's also the fact that courts don't have to appoint an attorney to represent the pauper; if you're a real person you can represent yourself, but corporations can't so obviously Congress didn't mean to consider corporations people here.
3) Corporations can't "make affidavit" -- they have to have an agent do it on their behalf.
4) ???

Bottom line: harder question than for directions re: past statutes. Implied repeal can come into play, for one! Also, the context of the later statute might obviate the previous interpretive direction.

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Severability

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Very strong presumption that there is severability when there is a severability clause. Rule: how much of the statute would Congress have passed without the unconstitutional part? That's the part you should keep, sever the rest. Obviously it's difficult to determine this . . . Were they independently popular or only popular together?

Best to use this when there can be a nice, clean extraction, not when there is a lot of entanglement between constitutional and unconstitutional parts of a statute

[Descriptive in that you can preserve legislative intent to pass as much of the law as possible; normative in that it minimizes conflict between the branches (strike down less, not more)]

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Presumption against extraterritoriality

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Clear statement rule: unless Congress clearly wants a statute to apply overseas, it won't. (Can also think of it as an implied exception rule: we'll insert an exception for extraterritorial applications unless you clearly say you want them.)

[Mostly normative--don't want to get entangled in foreign affairs unless we have to; but also some descriptive too since we can probably assume Congresspeople didn't want to legislate extraterritorially]

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Presumption against retroactivity

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Landgraf case - no retroactivity even when two sections of it say that they *aren't* retroactive, which lends plausibility to the argument that the rest of it *is* retroactive. Court still says not retroactive: it's a big bill, and there's no clear statement, and legislative history kinda points towards no retroactivity (Bush had vetoed last year's version that included retroactivity, for example).

The Court is applying a clear statement rule. You have to clearly state that it's retroactive. But what counts as a CSR? Concurrence wants it to be explicit in the text, but majority says there can be other ways to find one (like legislative history).

Test for determining whether a statute even has retroactive effect at all: does the act attach new legal consequences to events completed before its enactment? If the answer is yes, then the act is having retroactive effect. Then we won't let it do that unless there's a clear statement. But if the answer is no then we don't need the canon at all. Does it attach new legal consequences to conduct completed before enactment? Yes -> retroactive; no -> not retro.

NB: procedural effects do not count as legal consequences for purposes of this test. Examples of procedural effects are statutes that strip jurisdiction, transferring cases to other forums, and fee-shifting.

Scalia alternative test for determining retroactivity: process/substance dichotomy is nonsensical. He just wants to focus on the relevant activity the statute regulates: changing effects of any such action that occurs before passage of the statute makes it retroactive (which you need a CSR to do).

[Normative- in general retroactive legislation is bad policy;
Descriptive- because it is bad policy, legislators do not ordinarily intend to legislate retroactively]

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Presumption against implied repeals (specific/general canon)

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if a later statute is in conflict with a previous one (or arguably is), it can repeal it. But if it isn't done explicitly, the only way to impliedly repeal the former one is if the two statutes are entirely irreconcilable (e.g., two different tax rates). When the first statute is general and the second one is specific, the second one repeals the relevant part of the earlier one.

But what about when the first one is specific and the second one is general? I think we don't generally assume there's repeal.

What constitutes a "clear showing" to overcome the presumption against implied repeal? Well, unclear. For some justices, the statement can be found in the legislative history; for others, of course, it would have to be in the statutory text.

[descriptive -- we assume Congress doesn't want to repeal too many of their own statutes; normative -- it's probably not good to just overturn statutes left and right.]

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Noscitur a sociis

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A word is known by the company it keeps. "You may buy one scoop of ice cream, a candy bar, a treat, cotton candy, or M&Ms." Noscitur a sociis tells us to constrain the possible meanings of "treat" in that list based on the other elements: at the least, "treat" should be edible; but does it also have to be sweet? Depends on how high an abstraction you want to go...

[descriptive]

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Ejusdem generis

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Not to be confused with noscitur a sociis. "You may buy one scoop of ice cream, a candy bar, cotton candy, M&Ms, or any other treat." Ejusdem generis is about that catchall at the end!

If you hit someone over the head with a glass coke bottle and really hurt someone, does that violate a statute that prohibits hurting someone "with any firearm, dirk, stiletto, bludgeon, billy club, blackjack, or any other deadly or dangerous weapon or instrument"?

[descriptive]

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Expressio unius [est exclusio alterius]

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The inclusion of one thing implies the exclusion of other things.

If a couple of animals are listed as illegal to let roam (with no catch-all) then letting another animals roam free should be legal! It's not a very powerful canon, though--judges often say while it's possibly to apply it, there are good reasons not to. Example: "You can't hit, kick, or bite your brother." What about jabbing with a lacrosse stick? Expressio unius would dictate that's OK, but obviously there's an implied catch-all, the logic that by negative inference a parent would be implying that anything other than hitting, kicking, and biting is totally OK. You can say these are just examples, not an exclusive definition of the only things covered.

On the other hand, "You may have one cookie or one scoop of ice cream" seems to be a better context for expressio unius to apply--it seems to be "covering the field" and giving you all your possible options.

[descriptive]

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Last antecedent

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The idea is that the qualifying phrase applies only to the last antecedent, the thing that came right before it.

Bring apples, pears, and bananas that are ripe. Last antecedent rule says only the bananas have to be ripe. In some contexts it's more persuasive than others, of course.

[descriptive]

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Scrivener's errors

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Koons - caps on damages. Lots of changes to the bill, and it looks like an error (because there's a big ambiguity about the term "subparagraph"). Court says LH can correct a scrivener's error. And even more radical, we can use LH to *identify* something as a scrivener's error to begin with! Majority says that if something seems weird with the text, you can look to the LH to identify scrivener's errors; Scalia hates this approach--unless there's a typo or a manifestly absurd result, we can't look to LH to identify a scrivener's error!

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Imaginative reconstruction

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What would have Congress thought about this issue if the topic had come up?

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Presumption against absurdity

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Presumption that Congress didn't intend absurd results. NB: the only time Scalia is OK with consulting LH is when you're making sure that Congress really didn't want to reach an absurd result.

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Avoidance canon

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When one interpretation presents constitutional difficulties, do not impose it unless there is a clear expression of an affirmative intention from Congress for the act to take on that meaning. --this is the majority's clear statement rule in Catholic Bishop for when to use the avoidance canon; dissent says it can only be used when the alternative reading is plausible (i.e., not when you have to create exceptions to clear language out of whole cloth).

Great example: NLRB v Catholic Bishop - letting the NLRB help the employees of a religious school unionize might not pose any First Amendment problems, but then again if you start bargaining about what a biology teacher could teach about evolution then it might; the avoidance canon just says not to let the NLRB start at all.

□ Problem with this canon
® Normative- it pushes the sticky constitutional questions aside and never clarifies them. Rules tend to work better when you actually know what they are and the avoidance canon avoids confronting those questions.

□ Benefits of the canon/arguments in favor of canon:
® Judicial Minimalism-
o   Increase the frequency with which judges are deciding constitutional questions and which do not always have clear answers and can be subjective.
® Notion of forcing deliberation-
o   Forces the legislature, if they really mean the gray interpretation, to go back and re-examine the statute at issue and decide if the gray interpretation is the one that they really want.

[Note about avoidance canon: on the exam, if he wants us to talk about the avoidance canon, he'll tell us.]

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Saving canon

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When there are two plausible interpretations, but one is (pretty clearly) unconstitutional, pick the other one. This only works, again, if the constitutional reading is plausible--can't stretch things *too* far.

[descriptive in that it helps us get at legislative intent at the time (we can presume they didn't want to pass an unconstitutional law, so they must've meant the other thing);

[normative in that maybe we just don't want courts striking down laws as unconstitutional unless they really really have to]

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Chevron deference

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Two steps: 1) Has Congress spoken directly on this issue? If so, go with what Congress said. If not, proceed to 2) Is the agency's interpretation reasonable? If so, uphold it. This second step is where the doctrine gets its power--the interpretation might be one the Court thinks is wrong, but so long as it's reasonable the Court will let it stand. And this is how we cast it as an interpretive canon!

Normatively this probably makes sense because agencies are staffed by experts so they should be making most of these determinations. Descriptively, Congress also probably wanted agencies to make these decisions (not courts) so it's a good idea there too.

Some think that vague terms (as opposed to ambiguous ones) should get more Chevron deference since vagueness is often considered a delegation by Congress, but that doesn't seem to be the case in practice--they get the same deference.

An agency has to be one tasked with administering the statute at issue for it to get Chevron deference, and it has to do that administering in a formal way before it attaches.

Descriptive canons trump Chevron deference due to the fact that they come in at step 1--trying to determine if Congress has spoken about the issue to begin with--and so wins by default. Deference only comes in once descriptive canons have been exhausted

We don't really know how normative canons interact with Chevron--they're both about promoting policy considerations. In Sweet Water, Chevron beats out the ROL, at least, but other normative canons are unclear--though remember, the ROL is the only purely normative canon, so to an extent at least the other "normative" canons can also come in at step 1 thus effectively potentially trumping Chevron.

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Rule of Lenity

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If there's ambiguity, you should resolve it in favor of the defendant. The rule: resolve ambiguities in favor of the criminal defendant.

When does it apply? Breyer in Muscarello says pretty much only when it's split 50/50 between interpretations and so you'd just have to totally guess. If it leans one way or the other, the ROL doesn't apply, just use the more likely interpretation. Ginsburg says that unless one interpretation is decisively correct, the ROL should apply; any time it's kinda close we should go with the ROL.

But beyond how ambiguous a statute is, malum prohibitum/malum in se distinction could play a role too.

Purpose: it puts the thumb on the D's side. Fair notice, a reasonable person understanding what is and isn't wrong so we can act accordingly. Relatedly, if the SC can't even agree on the meaning of something, how is a D supposed to? Also, it's about having elected officials determine what's illegal, not judges. Then again, ROL can be seen as an escape valve for bad incentives for lawmakers to always vote for tougher criminal law. Finally, there's also the classical liberal argument: when in doubt, rule in favor of freedom!

ROL can apply in civil cases, too.

[normative]

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Shades of intent

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• Actual intent: what did the legislators actually think about this issue? If every single one of them thought about this and said "Nah, Elmer should inherit" that would be actual intent.
• Reconstructed intent: what would reasonable people have thought?
• General intent (aka purpose, and people who argue this are called purposivists): what were these legislators trying to accomplish? What was their purpose? And then how does that apply to the facts at hand? The last part of the Locke dissent asks what the purpose of the legislation is, and he thinks it's just to further FLPMA and figure out who owns what. And the fact that the BLM allows postmarked letters to be arrived by January 19th, and that the Locke family didn't get rejected till April, means that allowing them to file on the 31st wouldn't undermine the purpose of the statute.

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Presumption of meaningful variation

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Changes mean something; there's a reason you don't use the same word in both places.

[descriptive]

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Clear statement rules

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Why do we have clear statement rules (CSR) at all? These things used to just be weights to balance, but now it's an implied exception rule. What are the potential advantages of a CSR? Puts the legislature on notice; we're sending a clear message to Congress. Relatedly, this is deliberation-enforcing: make sure that Congress really wants to do this. And intent: we might think that these CSRs reflect the most likely legislative intent. Then there are policy concerns; you might think that in general it's not a good idea for Congress to legislate ET'ly, or that it's not a good idea to get close to thorny constitutional issues, so we're not going to assume these statutes are doing those things unless they really say so. [But you can also say that the judiciary shouldn't be bailing the legislature out and letting them score easy political points with their constituents by passing such a law that they know courts won't give the broad reach it seems to have.] And remember, courts are just making up when you need a CSR--you might say that they're just picking the result they want and using this canon (and others!) to get to it. Today it happens that those in favor of the CSR tend to be conservative, but they also tend to be against judicial discretion--how to reconcile those two things? Conservatives like rules!

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Federalism canon

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Absent a clear statement to the contrary, any act (regardless of the basis upon which it is promulgated) that infringes on traditional state functions/sovereignty, will be rejected under this canon.

Problems: not clear what counts as a clear statement, and not clear how far something must intrude on state sovereignty before the canon kicks in.

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Conflicts between canons

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Descriptive canons (last antecedent, ejusdem generis, noscitur a sociis, etc.) tend to trump normative ones (lenity, extraterritoriality). The converse also holds: if, after going through all the descriptive canons the question is still pretty much in equipoise, that's when our value-laden canons will come into play.

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Leo Sheep Co

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What can you look to outside the text of the statute when interpreting it? History of the times when the statute was passed--pretty much everyone agrees on this.

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Boutilier

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Statute just says gov't can keep out people who are "afflicted with psychopathic personality" but doesn't define that term. Legislative history suggests that sexual deviants were intended, so Boutilier (convicted previously of sodomy) can be kept from immigrating.

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Static/dynamic intent

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Did the legislators want their rules to be followed strictly forever according to knowledge as it existed at the time of passage, or did they want to say something like "infectious diseases" and let that be updated over time as science progressed?

This is different from actual/reconstructed intent. It's more analogous to specific intent on the one hand and general intent/purpose on the other.

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Weber

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Company starts a program to train low-skilled workers . . . and reserves half the seats for blacks (who make up only like 2% of the workforce)--basically a private company instituting an affirmative action program. White employees sue under Title VII--race-based discrimination!

But does discrimination mean just differential treatment, or differential treatment based on dislike?

Majority uses LH, finds comments that say the bill was supposed to improve black workers' employment prospects. Affirmative Action = OK then!

Blackman concurrence: affirmative action program is OK in *this case* because the company arguably had violated Title VII before in favor of whites, so this is remediating that and getting the company out of liability--which we want to encourage. But that doesn't mean affirmative action programs are always OK--they're only permissible when they are remedying a past problem.

Dissent looks to LH too and and history.

Another tack the majority could have taken: Footnote 4, page 274, talks about how the problem Congress was trying to address is still with us: whites are still employed more highly than blacks. So this could be a third possible intent of Congress: to raise the economic status of African Americans. If we suppose that is their intent, is the following possible: they intended color-blindness at the time of passage, but now the intent has shifted to allow for this affirmative action programs. You can argue that this is dynamic intent. Majority is saying the one thing they intended for sure was to improve the economic status of blacks--that remains steady over time. But they have dynamic intent about how to achieve that; at first start with color-blindness, but after 10 years of that not solving the problem they would want to allow this affirmative action program. This is problematic because it gives a ton of discretion to judges--you can do this with any statute!

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Arguments against Legislative History

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1) It can be rare that legislative intent actually exists in practice. If there are multiple options, and you compare them all pairwise, it's often the case that all of them win (think Pokemon).

2) Notice. Scalia wants to focus on the reasonable reader. Notice is also why nobody thinks that private statements by legislators (e.g., in their personal journals) should be consulted when determining the meaning of a statute.

3) Practical problems: it may be useless in almost all cases, and it may make things worse in the cases where it does do some work. (No empirical data on this point, though.)

4) Judicial activism - we might want to cabin judicial discretion as much as possible, and if we think LH lets people decide the case on other grounds and then cherry-pick quotes to rationalize their political decision, then LH starts looking pretty bad.
On the other hand, LH can sometimes *narrow* judicial discretion when it comes down clearly in favor of two possible textual interpretations (which is what Breyer chooses to focus on).

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Types of legislative history

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Which types of LH do judges tend to rely on more than others? Ranking generally goes: conference committee reports; committee reports; sponsor/floor manager statements; other committee members; others in favor; opponents. CCRs are most influential because it's a reconciliation of the disparate bills, they issue a report, and everyone just gives an up or down vote (no amendments). Committee reports tend to know the bills the best because they're the experts; problem is that the bill can be amended after leaving committee. Sponsors introduce the bill in the first instance so they presumably know it pretty well (of course they lose control of it right away, though). Floor managers explain the bill to everyone, so their statements can be plausibly credited. Opponents' statements are often rejected or carry very little weight.

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Legislative history vs. canons

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Three types of canons: purely normative, mixed normative/descriptive, and purely descriptive.

1) Rule of Lenity is the only purely normative canon. Scalia says that LH should never trump the ROL because criminal statutes are a community judgment and so should be based on the most complete process available (i.e., bicameralism and presentment). Breyer et al believe that in the right circumstance LH can trump the ROL. No clear rule for what to do.

2) E.g., avoidance canon, extraterritoriality, retroactivity, etc. Note that these are all clear-statement rules, and so the relevant question is whether LH can be the source for that clear statement. Scalia of course says no (except when it comes to absurd results). But most everyone else says potentially yes.

3) General Dynamics (reverse age-discrimination case) says that yes, LH can trump descriptive canons (such as the canon of consistent usage), and the majority even says that we can give weight to *silence* in the LH (Thomas doesn't like this part).

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Acquiescence

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Milner - Acquiescence can't overcome super clear statutory text.

Bob Jones - How much weight to give to an agency's (re)interpretation of a statute? Not as much as failure to correct a court's statutory interpretation. Courts don't care how consistent agencies have been, though--that doesn't play into things at all.

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Reenacting a statute

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There's a presumption that you're codifying the previous interpretations of that statute, but this can be overcome. When the law is weaker (like with Crooker, the DC circuit opinion at issue in Milner) that presumption is weaker.

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Dynamic interpretation

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Statutes' meaning changes over time. This is both descriptive (a true account of what's happening in the real world) and normative (it should happen, at least in some circumstances).

Sidenote: are meaning and application the same? MA court said yes in arguing that women shouldn't be able to serve on juries even though statute says all people eligible to vote may serve on juries and in between the 19th A was passed--they keep the application the same but they have to arguably change the meaning. PA court did the opposite: say the meaning stays the same (person is always a person) and the application has just changed to now allow women.

FDCA arguably changed meaning over time as numerous other statutes later regulated (but did not ban) tobacco, making it implausible to now read the FDCA as allowing (or requiring) the FDA to ban tobacco.

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Open-textured phrase

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A phrase that is not ambiguous right now, but which becomes indeterminate in the future when unexamined assumptions are put under pressure. Example: what would "mother" mean in a future where men can give birth to kids?