#11542 - Review Of Textualism V Purposivism - Legislation and Regulation (Admin Law)

REVIEW OF TEXTUALISM V. PURPOSIVISM

1. The goal of cabining judicial discretion requires that we limit the “correction” of text because judges would be likely to attribute to oversight what was actually a policy decision.

   1. Thus we want to enforce text and every semantic detail, which may be the result of legislative compromise.

2. Also, judicial correction of text reduced the legislative incentive to correct statutes—we want Congress to revisit statues that create bad policy.

3. It seems like the risk of congressional oversight is small in comparison to the risk of abuse of judicial discretion.

4. United States v. Marshall

   1. Facts: The Controlled Substance Act specifies criminal penalties for various drug offenses. Marshall was convicted and sentenced to 20 years imprisonment for selling LSD. If carrier weight was included, Marshall had 113 grams; if carrier weight was excluded, he had 670.72 mg.

   2. Applicable Statutory Language: “In the case of a violation…involving 10 grams or more of a mixture or substance containing a detectable amount of LSD, such person shall be sentenced to a term of imprisonment which may not be less than 10 years.”

   3. Issue: Whether the weights provided in the CSA include the weight of the carrier medium.

   4. Holding: Blotter paper treated with LSD is “a mixture or substance containing a detectable amount of LSD.”

   5. Plain Meaning

      1. Technical/chemical definition of mixture: Two or more substances which have been combined such that each retains its own chemical identity. Flour and sugar can be combined to form a mixture.

      2. Ordinary definition of mixture: Equal distribution of combined substances. Paint on canvas is not a mixture.

      3. Easterbrook goes with the technical definition (maybe because he was construing a technical statute) saying that to say that the carrier is not AMOSCADA, would be to ignore the plain meaning of the text.

      4. “Detectable amount” is the opposite of “pure.”

   6. Purpose

      1. The majority held that its conclusion was consistent with Congress’ purpose and not absurd.

         1. The carrier medium is an ingredient in the drug distribution business and Congress designed a schedule of penalties based on that fact.

         2. Extracting the LSD from the carrier and weighing it separately may be difficult or prohibitively expensive.

      2. The dissent said that the purpose of the statute was greater number of doses should carry higher sentences.

         1. Weight is usually a good proxy for dosage—but LSD is special and Congress made a mistake and didn’t know how LSD was sold.

         2. Accused Easterbrook of construing the text without reference to purpose.

         3. Excluding the carrier would still be consistent with Congress’ purpose.

         4. Posner has no problem rewriting the text to be consistent with purpose.

         5. However, this purpose is largely derived from Posner’s assessment of sound policy.

   7. Canons

      1. Expressio Unius—The statute contains special language in regard to PCP saying, “100 grams or more of PCP or 1 kilogram or more of AMOSCADA of PCP.” The fact that Congress distinguished between the pure form and AMOSCADA with regard to PCP suggests that it did not intend to do so with regard to LSD.

         1. The words it used regarding LSD were not the result over oversight—Congress was aware that some drugs were sold by the dose on carrier media with variable weight.

      2. It...