Legislation and Regulation Outline

Legislation and Regulation Lavoie Spring 2018
 
Purposes and Benefits of Statutes-Why do we have statutes? We already have the common law.
More timely-it takes time for courts to make decisions. The statute will give you a rule much quicker.
Give citizens notice of the rules
Uniform application of the rule
Deliberative and democratic law formation” Legislators can weigh competing interests of society by holding hearing when they craft a law-more people tasked with making the rule(?)
Judges may reach decisions based on own life experiences- they are people. There’s less room for them to feel things when the law is laid out so simply.
Statutes are better geared towards society. Common law from cases are often so specific to what happened.
The Legislative branch makes the law, the Executive branch approves the law, and the Judicial branch tells us what the law means.
 
Theories of Interpretation
Textualism
Originalism-the text’s meaning at the time it was enacted.
What would the average person at the time the statute was enacted have thought these statutory words meant?
Exclusive focus on statutory text.
Literal application of the language-plain meaning and linguistic (how words are put together) canons of construction
Rejects any inquiry into intent of legislature.
If there is an ambiguity, pick interpretation most coherent with statutory scheme and larger body of law as a whole.
Constrain the inquiry to language of Congress
Judicial Role:
Judges have no legislative authority. They should not be creating new rules.
Judicial Role is strictly constrained by limiting inquiry to statutory text at time of enactment (prevents judges from bringing their person beliefs into play.)
Judges should not save the legislature from its own poor drafting.
Benefits:
Elegant
Uniformity/Certainty in the Law
Democratic Legitimacy: Keeps legislative authority solely in hands of elected representatives
Dissuades judicial activism by unelected judges unresponsive to popular will (keeps judges in check)
Makes legislature more honest regarding what they are really doing, so they can be held accountable by voters.
They can’t hide things in the legislative record-be open about it.
Criticisms:
Strict constraints of textualism are not necessary to promote uniformity/certainty in the law.
Stare decisis and similarity in training, appellate review, etc. can sufficiently curtail judges that make aberrant rulings.
Democratic legitimacy: legislatures cannot be expected to think of every contingency when drafting statutes, and expect courts (and the executive) to cover what was not thought of or was unstated. 
That is, courts have been delegated legislative power in these situations by the legislature, so actions are sanctioned. This keeps Congress from having to redo the law every time a new issue is discovered.
The burden textualism on places legislatures to correct mistakes is too great.
Often yields markedly unjust results in particular case and for citizens prior to enactment of corrective legislation
Textualist judges are as activist as other judges (deciding cases based in part on their own values), but they disguise their actions under a textualist cloak.
The rule of law is more than just words. Statutes are the product of societal desires and laws not consonant with those values will be rejected by citizens. Thus, originalism improperly ignores the very basis of statutes by focusing solely on the statute’s text as understood at a moment in time.
Intentionalism
Willing to look beyond the words of a statute and at the legislative intent to interpret a statute
Statutory text must be interpreted on the meaning intended by the adopting legislature
In the absence of direct legislative guidance, focus on policy of statute
Originalist (meaning of statute fixed at time of enactment)
What did legislator at time of enactment intend statute to mean?
If an ambiguity exists, pick the interpretation that the judge believes the original legislature would have agreed upon if it had specifically considered the specific question at issue (“reconstructive/imagined” intent)
Judicial Role:
Judges act as the faithful agents of the legislature to ensure the legislative will is carried out.
Judicial role limited to intent of legislature at time of enactment
The originalist part
Judges prohibited from questioning advisability of the legislature’s statutory decision
Benefits:
Democratic Legitimacy: keeps legislative authority largely in hands of elected representatives
Judges constrained to act as faithful agents of legislature
Promotes legislative efficiency since courts will fill in rule legislature would have adopted if it has thought of the situation.
Criticisms:
Legislative history is not authoritative and can be used to highlight views of particular legislators.
No such thing as “intent” of legislature since it is composed of many members who all have their own view about the law and its meaning, many of which could be contradictory.
Democratic Legitimacy: Legislative history typically does not reveal the answer to a specific question, so judges have room to insert their own values in finding the legislature’s “imagin