Legislation and Statutory Interpretation Outline

Legislation & Statutory Int. Outline
University of Georgia
Prof. Levin Fall 2012
 
 
    I.            INTENTIONALISM
A.     Theory:
1.Seeking the original intent or specific intent of the enacting legislature
B.     Role of Judge:
1.Faithful agent of legàStatute becomes a law b/c of enacting leg—a judge interpreting a statute should seek to implement the will of the leg by gleaning the enacting leg’s intent
C.     Sources:
1.Words are imperfect vehicles for conveying meaning—necessary to look beyond language of statute to understand what the leg meant by its words
2.Intentionalist pay careful attention to legislative context and history to determine what leg had in mind
a.       Often find statements made during leg process and early draft versions of bill enlightening
3.Focus on text and extrinsic sources to find the specific intent of the enacting leg in regard to the language at issue in the statute
D.     When confronted w/ difficult statutory issue:
1.Ideallyàresearching the leg hist would reveal that the legislature considered the very question at issue and clearly resolved it
2.Most cases thoughàIntentionalist seek evidence of either:
a.       Leg’s general intent—whether the leg intended for the statute to be broadly or narrowly interpreted; OR
b.      Imagined Intent—what would the leg have agreed upon had it considered this particular question
 
E.      PROS:
1.Constrains judiciaryàexamining sources other than text helps develop more fully informed decision—thus ensure judiciary maintain interpretive role
2.Separation of Powersàprotects leg’s power to legislate from judicial interference
a.       Judges must implement the enacting leg’s intent—NOT impose their own policy preferences
F.      CONS:
1.Can Congress have a unified intent—whose intent matters?
a.       Each leg may have their own reason for voting
2.Legislative history can be manipulated
a.       “Look over the heads of the crowd and pick out friends”
                                                                                                     i.            Judges may choose which is relevant and reject the rest
3.**Intentionalist accept criticism as validàsay it can still offer insight
a.       Whole point is to know what legislators are thinking
G.     EX: “NO VEHICLES IN THE PARK”
1.Statutory IssueàIs skateboard a vehicle?
2.Intentionalist view:
a.       What did leg body that adopted the ordinance most likely intend?
3.How to discern the adopting leg’s intent?
a.       Consult the leg record and historical context:
                                                                                                     i.            Was the question of skateboards explicitly discussed?
o If YESàWhat was the prevailing view of leg on skateboards
o If NOàWhat did the leg appear to be most concerned with in its deliberations?
                                                                                                   ii.            Is it possible to determine what the majority of legislators would have thought about skateboards had they considered them?
H.     Rehnquist in Weber:
1.Concerned w/ the deal making process C had to go through to get this deal done:
a.       Legis. Hist. shows that Congress explicitly discussed the word and meaning of “discriminate”—prevailing fears were that Title VII would require the correction of racial imbalance in workforce
b.      Congress’ remedy for fearsàadoption of §703(j)(“Act is not to be interpreted to require any employer to grant preferential treatment based on race)
2.Legislative History uncover the PurposeàEquality and “Color-Blindness”
3.TAKE AWAY: Preserve Congress’ deal—aspirations of color-blindness
a.       Court here changed the meaning of the statute by judicial fiat—that change goes to the roots of the bargain struck by Congress
 II.            TEXTUALISM
A.     Theory:
1. Begin w/ the same originalist proposition that Intentionalist do—statute’s authority comes from its enactment as law
2.Thus—a statutory provision DOES NOT change in meaning as the political culture changes
B.     Role of Judge:
1.Determine how the average member of the enacting leg would have understood the text
 
 
C.     Sources:
1.Fiercely REJECT seeking legislative intent—so, they reject most uses of leg hist
a.       ONLY the text of the statute has the force of law
D.     When faced w/ difficult statutory issue:
1. Focus on Plain Meaning Rules(Cannons):
a.       Words are to understood according to their ordinary meaning—can determine meaning from:
                                                                                                     i.            Customary Usage or Dictionaries; OR
                                                                                                   ii.            Reference to well-developed technical or legal meanings
2.Stress Structure of Statute and Relationship to Related Statutes:
E.      When statute susceptible to multiple meanings:
1.Apply meaning most coherent w/statutory scheme as a whole; AND
2.The larger statutory landscape at time statute was enacted
a.       FictionàThis requires that judges adopt a fiction(“Benign Fiction” according to Scalia)—that legislators mean and have sufficient knowledge and information to pass statutes that are internally coherent and coherent w/ the larger body of contemporaneous law
F.      PROS:
1.Most Important—Judiciary’s focus returned to the text
2.Encourage more careful drafting by Congress
a.       If held to their words, member more likely to choose their words carefully
3.Increases predictability and efficiency
a.       If judges/litigants constrained by text—meaning becomes more assured
G.     CONS:
1.Unwillingness to consider some sources of meaning—leg hist and purpose
a.       Makes little sense to prohibit all evidence generated during the leg process simply b/c its not enacted
H.     EX: “No Vehicle in the Park”:
1.Plain Meaning is questionable—where to look?
a.       Other Statutes referring to vehicles:
                                                                                                     i.            If Vehicular Manslaughter statute is clear that skateboard not vehicle—may conclude skateboard under ordinance is not
                                                                                                   ii.            BUT what if separate ordinance refers to “Motorized Vehicle”?
o Might conclude that the unmodified “No Vehicles” ordinance does apply to skateboards
b.      Absent such statutes:
                                                                                                     i.            What laws are skateboarders subject to?
o Laws targeting pedestrians rather than
o Laws targeting vehicle operators
III.            PURPOSIVISM
A.     Theory:
1.Associated most closely w/ Hart and Sacks focuses on 2 questions:
a.       Why was the law in question adopted?(Mischief Rule)
b.      How is the laws purpose best promoted under the current circumstances?
B.     Role of Judge:
1. Declare the expressed intention of the Legislature
a.       Even if that intention appears injudicious to the Court
C.     Sources:
1.First consult statute(Text)  itself:
a.       Some explicitly state their purpose as part of the text
b.      Other identify competing purposes
c.       Others identify no purpose at all
2.None stated—consult Leg Hist and Context and Policy based sources:
a.       Ascertain the broad rationale for the statute—as opposed to the hyper-specific leg intent(as an Intentionalist would do)
D.     When faced w/ difficult statutory issue:
1.Determine the mischief the statute sought to remedy:
a.       What was CL before the statute?
b.      What was the defect for which CL didn’t provide?
2.Once purpose and remedy identified—interpret statute to further that purpose:
a.       CAN’T give words a meaning those words cannot bear
b.      CAN’T give words a meaning that would violate established policies