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Legislation
University of Dayton School of Law
Cox, Jeannette

Legislation – Outline
 
Textual
Substantive
Coherence
technical v. ordinary meaning
noscitur a sociis
ejusdem generis
expressio unius
punctuation
and v. or, may v. shall
whole act rule
lenity for criminal cases
inter. to avoid const. problems
retroactivity
federalism
common law
rule against implied repeals
in pari materia
I. Introduction
A. Three goals:
1. Learn to read and interpret statutes – go to STATUTE FIRST
2. Evaluate kind of arguments that are made (and identify what is not argued)
3. Think through relationship btw view of leg. process and its implications on leg. interpretation
a. Two views: interest group, deliberative
B. Civil Rights Act of 1964
1. Bipartisan split
2. People voted against the bill simply b/c their ego wasn’t stroked
3. Title VII, “sex” added in an attempt to destroy the bill – but it still passed – should it matter? – maybe read narrowly
C. Purpose, intent, and text
1. Purpose – what is the purpose of the statute?
2. Intent – what did Congress intend? – semantic intent v. intent as to consequences
3. Text – what does the text say?
II. Statutory Interpretation
A. Goals:
1. How to interpret statutes: correlation btw leg. intent & how ct applies, interpret against background of common polity, need fair notice, enforcement matters
2. Problems: what kinds of intent matters, means v. ends, no interpreter can carry out goals perfectly
B. History – CL – judicial task = law discovery – statutes in derogation of CL are construed narrowly
C. Modernity – statutes are continuous enterprise to solve problems of societal living
D. Mischief Rule
1. Questions to ask:
a. What’s the CL that would’ve covered the statute in Q?
b. What is the answer from CL?
c. What remedy did the leg. intend to fix the problem?
d. What is the remedy’s true reason?
2. Ex: all drug shops shall be closed at 10pm – what does “closed at 10pm” mean?
3. Blackstone
a. Any leases for land “other than for the term of 21 years” shall be void
b. Bishop Jones leases land for 50 years, tries to get out of it
c. Mischief = destruction of land interests for successors
d. Bishop can’t get out of the lease
E. Rules v. Standards
1. Policy choice – both get at same purpose
2. Rule:
a. Over and under inclusive
b. Seems more fair in some ways (as long as rule fits situation)
3. Standard:
a. Much harder and more complicated to apply
b. Ask interpreter to use more discretion
c. Invite bias – consider policies and values that leg. might not want considered
d. Not as good w/ notice and predictability
F. Holy Trinity (p. 675)
1. F – Episcopalian minister from England, contracted to be pastor in NY – violates statute
2. This is w/in letter of § 1, but Congress didn’t intend this case
3. Start w/ prohibition, and try to show minister isn’t covered – minister is intellectual, not “labor or service”
4. See if minister fits in exception (§ 5) – could be a “lecturer”
5. Exceptions let us draw inferences about general rule
6. Mischief rule – capitalists were bringing in large #’s of foreign labor, not “brain toilers”
7. Intent used two ways:
a. Subjective = actual intent of enacting members of Congress – “what did you mean?”
b. Objective = what would reasonable reader think leg. wanted to convey
8. Ct applies subjective view of intent
a. Senate Committee report – wanted to use “manual labor or manual service,” but in a hurry
b. Senator Blair – Morgan worried that professionals would be included – Blair agreed, so should amend bill further – but never done
9. Absurdity argument – statute shouldn’t be construed if conclusion is absurd
a. Only applies if statute isn’t clear
b. Blackstone – wouldn’t give man power to judge his own case – if statute seems to do that, it can’t be construed that way – but if statute is clear, can enforce it
G. Imaginative Reconstruction
1. Riggs v. Palmer (s p. 5)
a. F – grandson was remainderman in g-father’s will, g-father remarried, g-son killed g-father
b. Held – money goes to 2 daughters – if NY leg. had thought about it, they would’ve added slayer statute
c. Dissent – leg. told us how to make wills & murder statute satisfies public policy
d. Which statute are we interpreting here
i. Will or murder? – is will valid, should g-son be punished more
ii. Slayer was only heir apparent, so we’re not taking anything away from him
e. For:
i. Makes sense for judiciary to fill gaps – leg. do

s silly – precedents don’t compel one particular result
3. Deconstructive – law is just a policy choice – best we can do is predict what courts will do
4. Constructive – law is policy, but we can identify the policies that govern particular subject area of law
5. Turn of century – more statutes, what did Congress intent in subjective way?
6. Legal process – response to all this – retain way to think about rule of law & role of democracy
a. Specific institutional roles for different members of govt.
b. Main feature = purposive approach – law is trying to solve problems
c. Optimistic about leg. process
7. Critiques
a. Too optimistic about legislators – legislation is just compromise of competing interests
i. Response – disagree w/ this view – even if it’s true, judge must make something of what comes out
b. There is no neutral response from statute & leg. history
c. New textualists (reject leg. history) – better to just look at language and apply it (judges better at semantic intent, fits Const. plan better)
B. Case of Speluncean Explorers (Fuller)
1. F – explorers trapped, kill one & eat him
2. Statute – anyone who willfully takes life of another is sentenced to death
a. Exception for self-defense
b. Chief executive can commute sentences
3. Trial Ct – guilty, but urged executive to exercise leniency
4. Foster – purposive
a. Multiple purposes for prosecuting murder – but these people didn’t “murder”
b. Utilitarian calculus sort-of makes it ok – benefits > costs
c. Fidelity to a sensible interpretation
5. Keane – textualist – maybe we prosecute murder b/c we think it’s bad OR retribution
6. Kozinski – textualist
a. Maybe they weren’t morally wrong, but leg. should fix the problem
b. Leg. better represents the conscience of the community