Legislative Regulation
Prof. Alan Rozenshtein
Spring, 2018
Introduction to Statutory Interpretation
The Judicial Power and Equitable Interpretation: United States v. Marshall
i. What should the role of the court be? United States v. Marshall (1990) – Interpretation of the Controlled Substances Act. Marshall, wholesale dealer of LSD gets 20 year sentence, while other 3 defendants, retail dealers, gets 5-8 year sentence. If you include the weight of the carrier (blotter paper), the weight increases significantly even though not more drugs, so sentencing increases greatly b/c of mandatory minimum. Problem stems from fact that Congress did not anticipate drugs in this way- thinking more of heroin vs. method of delivery included in “dose” weight here.
Standard model: Faithful agent of Congress: Easterbrook for the majority: Conviction is upheld. Easterbrook does not want to undermine Congress even if interpretation of statutory text leads to odd results, says it’s not the court’s place to say that Congress was wrong. Aslong as Congress’ scheme satisfies minimum level of rationality- that result isn’t irrational. That would only happen when the result is one in which it is inconceivable that congress intended. Also says that it is easier to administer the law with this interpretation.
Junior Partner for Legislature: Posner for the dissent: describes various ways in which the statute, as interpreted by the majority, leads to absurd results. Int. as majority means penalties way out of wack with similar weights for heroin; penalties for LSD will vary wildly depending on how sold. While majority sticks to semantic reading of statutory text, minority’s reading is more sensible, just, and consistent with overall goals of legislative scheme. In this view, judges have more freedom to shape legislation through judicial interpretation that proceeds but is not bound by statute and Congressional instructions. Would restore judicial power to common law function of keeping law up to date while retaining legislative initiative.
Constitutional underpinnings
Article III: Judicial power vested in courts – founding fathers would be schooled in English legal tradition and bring this view to writing Constitution
i. Legislative supremacy: conventional notion: federal system is grounded in idea of legislative supremacy – Courts can only interpret what the law is (M v. M). And not clear that Article III based on English understanding of court’s role. Marshall court, made up of founding father era people, mainly focused on the text and articulated faithful agent role (those for judicial partner idea would say): But equitable interpretation is ancient English practice in common law – where, when exceptions dictated by sound policy were written by judges into loose statutory generalizations and situations were brought w/in reach of statue that lay outside express terms.
Enacting federal legislation:
i. Article 1 section 7: passing a bill – Bicamilarism and presentment: means needs a lot of consensus before laws enacted – process set up to make enacting federal statutes purposefully slow b/c think will limit bad laws, careful deliberation by lawmakers, facilitate public participation; balance of powers to check authoritarian power grabs by one branch;
Article 1 section 5: Each house can set up own procedural rules
i. Bills introduced by executive or significant interest group; either chair of a standing committee or other influentional member of Congress typically introduced. Then referred to appropriate standing committee- turf wars over this; speaker/ person acting on his/her behalf assigns. Once in committee: can refuse, rewrite, amend and submit bill; or submit to chamber with report about it. Then on floor of congress for debate- each chamber works differently. Once passes both chambers, two versions reconciled in a conference committee. Not supposed to significantly change bill here but often happens. Once reconciled, conference committee staffers write report about that expaliains compromise reached. Final bill presented to president for signing – veto can only be overridden by 2/3 of each chamber votes to override
Statutory Text and Statutory Purpose
Schools of thought: Textualism, Purposivism, Originalism
Purposivism: view specific legislative intent, ie what the legislators would have done if confronted w/ the exact question at issue when enacting the law, as too difficult to construct. But still maintain that Congress adopts legislation for a reason and that courts should read specific statutory provisions to advance the legislation’s purpose or general aims, as derived from a variety of sources b/c Congress used Constitutional power to set statutes purpose, and courts should administer to that intent. Judge should assume Congress is reasonable, pursuing purposes reasonably- Judge Learned Hand. Competed w/ plain meaning rule (where the language of statute is clear and only has one meaning, courts don’t engage in statutory interpretation). through 19th, early 20th century. By new Deal, was supreme (1940: US v. American Trucking: function of courts in statutory interpretation is to construe language to give effect to intent of Congress)
i. Also believes that faithful statutory interpretation does not pursue goals at all costs- must respect limist of statutes application as well as ultimate ends…words in a statute still most reliabel source for learning the purpose of a document, and policy of a statute adheres as much to its limitations as in its affirmations – But NOT a reason to rely on a literal approach to text that reads statutory terms more narrowly than a fair understanding of their general purposed would suggest intended- where differ w/ textualism (Learned Hand, Borella v. Borden). Where this happens, usually not out of legitimate desire to respect Congress choice of means but an improper, policy based judicial desire to limit scope of federal law (Learned Hand, Borella v. Borden).
ii. Tools: when plain meaning leads to absurd/ ambiguous results, turn to sources beyond act. Purposivists would often turn to when plain meaning also produced unreasonable results that contravened the policy of the legislation as a whole; no rule can forbid using outside sources in helping to construe the meaning of the text even if it, superficially, appears clear
Statutes title, mischief rule (look at issue congress was trying to solve)/ other canons, legislative history,
Legislative supremacy: Sees errors and gaps in law as mistakes/ lack of congressional foresight which should be brought in line w/ legislative intent
Statutes title
Pro: tells interpreters something useful about how Congress conceived of its reasons for acting, shedding light on statutes purpose (Holy Trinity-pg 51); titles and headings are not commanding but the supply clues, esp. when reinforced by other contextual clues (Alito, Maj. In Yates v. US)
Con: title of statute can’t limit plain meaning of the text b/c it is an abridgement, so some matters covered by text are not reflected, and therefore should not be overruled by a tile (Kagan, dissenting in Yates v. US).
Legislative history: See section below.. Ex: court looks at overall structure created by statutory scheme to infer statute purpose, which court then uses to interpret specific provisions (US v. Fausto); try to infer the meaning of a particular provision by the apparent purpose of the statute as a whole (Commissioner v. Estate of Sternberg); statute’s relationship to other statutes concerning the same general subject matter may reveal purpose ( Keifer & Keifer v. Reconstruction Fin. Corp. pg 55)
Societal values (Holy Trinity)
Other evidence of statutory purpose – think mischief rule
iii. Strengths
iv. Weaknesses: Can essentially turn to any source to support policy choice by judge- there was overreliance and abuse of it.
Intentionalism: most traditional approach but out of favor now. When there is ambiguity in a statute or it dictates a troublesome result, a judge should try to figure out the likely intent of the legislature for the problem at hand, ie try to figure outwhat the legislators would have done if confronted w/ the exact question at issue when law enacted
Textualism: mid 20th cen. Movement, esp. by Scalia and Easterbrook challenged assumptions underlying purposivism: Rejects legislative history as a tool of statutory interpretation. Base on premise of legislative
lexibility to promote each in cases- web of considereation with different and varying weights for each case, better than set of hierarchical rules
iii. However, interpretive methods may be appropriate only for higher courts where have greater technical capacity and lighter case load; cases more likely to be scritinzed by legislatire and trigger reaction to fix if don’t like it; much greater debate and political salience to SC and higher courts pick, so maybe more accountability. Judges in many states are elected, so doesn’t count as much for those. State judges also have more common law powers than federal judges.
How should we discern legislative intent?
i. How to reconcile letter vs. spirit of the law: human language is imprecise, legislators have limited foresight about particular situations that interpreters will encounter when statute is applied in real world situations In certain situations, statute will be under or over inclusive relative to aims of legislative purpose in enacting statute. Leads to mismatch between:
Letter of law: rules embedded in statutory text and
Spirit of law: general background purposes of the statute.
Traditional approach: “will of legislature” = when look at statute, suppose that lawmaker is present, and answer Q as imagine legislature would have; best way to interpret will of the legislature is by exploring intention at time when law was made by signs, in order from most to least important (Blackstone): words, context, subject matter, effects and conseqences of law. Somewhat deviated from in US but mostly still stands today:
Words: use most significant meant; terms of art understood as in specific trade
Context; if words still ambiguous, turn to context – preambles, comparison of similar laws
subject matter: words make sense in regard to subject matter
effects and consequence: if outcome of law absurd, interpret differently
spirit and reason of the law: likes equity (the correction of that, wheint he law, by reason of its universality, is deficient. Gets at WHY law enacted. Case by case basis so no set rules, but shouldn’t be abused. Often courts will use the letter of the law to trump the spirit of the law.
The Classic Approach:
i. Purposivism: Church of the Holy Trinity v. United States: Church of the Holy Trinity hired a pastor from England, but there is a statute (Alien Contract Labor Act) that makes it unlawful to import/assist immigrants to perform labors or services of any kind.
Social and legislative history: here, the court looks at the title of the statute, the historical context, the legislative paper trail, and implicitly, the absurdity doctrine. Strong purposivist case. Absurdity argument: the US is a Christian nation, no legislature would want the result of barring a minister from entering the US.
Stands for idea that when letter of the law and spirit of the law conflict, Spirit of law must win. Once court decided that Congress enacted statue w/ gen purposed of to cut on cheap, unskilled labor, court decided in faithful agent mode, that its job was to cut back the statues to give effect to its background purpose or general aim. Thus reshaping the text to fit the statutes purposed was not substitution of the will of the judge for that of the legislature but a way of giving effect to true legislative intent and will.
