Legislation and Statutory Interpretation Law 5745

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Legislation and Statutory InterpretationLaw 5745

• Professor Richard C. Reuben
• Class 13-2
• April 17, 2008

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Rules of Clear StatementNew Federalism Canons

• The Canon If Congress intends to alter the
  usual constitutional balance between the states
  and the federal government, it must make its
  intention to do so unmistakably clear in the
  statute.
• Garcia v. San Antonio Met. Trans. Auth. (1985)
• (Powell, J. Dissenting)

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Gregory v. Ashcroft501 U.S. 452 (1991)

• Key Facts
• Federal ADEA makes it unlawful for employer to
  specify mandatory retirement ages over 40 for
  covered employees
• Expressly applies to state government employment
• Mo. Const. requires judges to retire at 70.
• Question How does the federalism canon apply to
  resolve this tension?

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The key language in Gregory

• The term employee means an individual employed
  by any employer except that the term employee
  shall not include
• any person elected to public office in any State
• or any person chosen by such officer to be on
  such officer's personal staff,
• or an appointee on the policymaking level
• or an immediate adviser with respect to the
  exercise of the constitutional or legal powers of
  the office.

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Gonzalez v. Raich (2004)

• Californias Compassion Use Act provides
• Californians have the right to obtain and use
  marijuana for medical purposes where that medical
  use is deemed appropriate and has been
  recommended by a physician who has determined
  that the person's health would benefit from the
  use of marijuana in the treatment of cancer,
  anorexia, AIDS, chronic pain, spasticity,
  glaucoma, arthritis, migraine, or any other
  illness for which marijuana provides relief.
• Federal Controlled Substances Act provides
• It shall be unlawful for any person knowingly
  or intentionally to possess a controlled
  substance unless such substance was obtained
  directly, or pursuant to a valid prescription or
  order, from a practitioner, while acting in the
  course of his professional practice, or except as
  otherwise authorized by this subchapter or
  subchapter II of this chapter.
• Held?
• Federal commerce power includes power to prohibit
  local cultivation and use of marijuana

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BFP v. Resolution Trust Corp. (1994)

• Key Facts
• Section 548 of Bankruptcy code permits bankruptcy
  trustees to cancel fraudulent transfers if
• Debtor had interest in the property
• Transfer occurred within a year of bankruptcy
• Debtor insolvent at time of transfer, or made
  insolvent by the transfer
• Debtor received less than a reasonably
  equivalent value in exchange for such value
• Question Does statute require reasonableness
  inquiry?

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CanonsThe Llewellyn Critique

• For every canon there
• is another canon that
• makes the opposite point
• -- Newtons Third Law
• of Motion
• Implications
• Canons at best are a
• secondary tool of
• construction
• Use in support of other arguments
• Focus on other tools first
• Especially text

Sir Isaac Newton
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Legal Process Theorys Response

• Meaning depends on context
• Context will determine which of the canons one
  should use
• Canons simply provide answer to the question of
  whether a particular meaning is linguistically
  permissible

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Critical Legal Theory Critique

• Canons used to suppress alternative ways of
  thinking about issues
• Merely reaffirms the status quo
• Based on faulty assumption that legislature is
  rational, methodical
• Shapiro Response Canons provide for legal
  stability because they provide a rule of decision
  in close cases that preserves the status quo

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Law and Economics Defense

• Canons best thought of as ex ante rules
• Provide a set of rules thats better than nothing
• Provide interpretive regime that provides some
  predictability
• Operate as default rules unless legislature
  specifies otherwise
• Fosters democracy by encouraging deliberation by
  legislature

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Pragmatic defense

• Some canons -- e.g. linguistic -- are essential
  to communications process and are an inevitable
  result that process
• Provides a checklist of things courts should
  think about when approaching a statute
• Expressio Unius Why didnt legislature include?
• Whole Act Rule What does rest of statute say?

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Sunsteins defense

• Substantive canons provide a vehicle for
  integrating public law values into judicial
  decision making
• Engage constitutional principles in statutory
  cases
• Avoidance
• Due process
• Rule of law values
• Respond to institutional concerns
• Presumption of judicial review
• Presumption against implied repeals
• Counteracting Statutory failure
• Presumption of political accountability
• Presumption of proportionality (overzealous
  implementation)

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Brudney Ditslear Study of Canons (2005)

• Surveyed 630 U.S. Supreme Court Opinions invoking
  canons between 1969 and 2003
• Findings Ideology matters
• Rehnquist court relied on linguistic canons more
  and legislative history less than Burger court
• canons vs. legislative history, canons win
• Conservative justices used canons to justify
  conservative results, visa versa
• Especially in close cases
• Conservative justices tend to use canons to
  undermine liberal legislation
• Canons can be substitute for judicial expertise
  in technical areas, such as ERISA andbankruptcy

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Interpretive Instructions

• Statements in statute that tell courts how to
  interpret statute
• E.g. RICO statute says the provisions of this
  title shall be liberally construed to effectuate
  its remedial purpose
• Not as strong of an interpretive aid as the
  substantive provisions of the statute
• Aid for resolving ambiguity, not creating it