#11273 - Intro The Legislative Process And Statutory Interpretation - Legislation & Regulation

1. INTRO: THE REGULATORY STATE

Case Study: Products Liability

• Formerly very hard; the rule of privity required that Δ and Π be in privity of contract before Π could sue Δ for selling defective products. If there was a middleman between them, no liability.

• MacPherson v. Buick did away with the rule of privity, enabling consumers to hold manufacturers liable in tort.

• Cardozo, J.: The law has a role in changing behavior, reducing risk, and increasing safety. The rule of privity disrupted the law’s ability to fulfill this role.

Tort Liability

• Tort liability might compel the manufacturer to change its behavior, but it creates no mandatory rules.

• Tort is reactive, not proactive.

• Damages may be too low to reflect the actual harm caused, since not everyone injured will sue.

• Damages may be too high because the court wants to send a message to the defendant and others.

• Courts may not have the requisite expertise to determine whether an actor has exercised due care. Everything is evaluated through the general negligence analysis, no matter how technical the subject.

• Courts lack the resources to perform thorough investigations into the best policy.

Contract Liability

• Instead of waiting for an injury and asking a court to determine whether Δ violated a standard of due care, we could instead leave it to the parties themselves to bargain for what they want.

• But consumers don’t necessarily know what to bargain for, especially when it comes to very technical goods/services.

• Moreover, this regime can’t account for externalities to private transactions. Bargains between, say, polluters and neighbors may be blocked by problems of free ridership.

Statutes and Regulations

• Because of the limitations in Tort and Contract law, we might turn to statutes and regulations to set proactive rules

• Such rule anticipate harms before they occur (but do a better job than contract, since they apply to all of society and are written with the input of experts, investigative hearings, etc.)

2. LEGISLATION AND STATUTORY INTERPRETATION

   1. The Legislative Process

1. Theories of Choice

Public Choice Theory

• Legislation and regulation are the product of the political process and the interests driving the process.

• Small, concentrated groups have disproportionate power over individual issues which matter to them.

Where a broad majority supports a certain course of action but cares little about the issue, and a small minority supports a different course but cares intensely and is willing to focus its efforts on that issue, the minority may prevail.

Social Choice Theory

• People’s preferences are multiple and ranked; thus, merely holding a vote will not necessarily result in a clear winner.

• This leads to cycling, where voting on ranked preferences produces different outcomes depending on the order.

• Arrow Theorem: Because of cycling, the person who schedules the votes has outsize influence over the outcome.

• This principle might cause us to doubt the legitimacy of legislative intent.

  1. Vetogates

Why have them?

• Presumption against legislation;

• Force consensus-building;

• Limit the majority party’s control

There are many ways for a bill to die:

• Committee in either house refuses to consider the bill.

• Committee in either house refuses to advance the bill once it has considered it.

• Either house amends the bill to death or votes it down.

• The bill is filibustered in the Senate (fewer than 60 cloture votes)

• The conference committee can’t settle on a final version of the bill.

• Either house rejects the conference committee’s version of the bill.

• The bill is vetoed by the President.

Vetogates create a presumption against legislation, which forces consensus-building, inhibits the ability of the federal government to encroach upon state power, and prevents hasty legislation.

1. Statutory Interpretation

   1. Schools of Interpretation

      1. Purposivism

• Purposivism seeks to discover the purpose of the statute and to resolve ambiguity in the way that best serves it.

• Looks to the text first for evidence of the purpose of the statute, and then proceeds to legislative history, the state of society when the law was enacted, transcripts of hearings, committee reports, correspondence between members, etc.

• Legal process purposivism asks what a reasonable legislature would do in this situation.

• General purposivism asks what the “big picture” purpose of the statute, how the words of the statute should be interpreted in light of that purpose, and how to resolve ambiguity in the way that best serves that purpose.

• Judicial Fixing: The court looks at what the intent must have been and read this into the law.

Riggs v. Palmer: Elmer poisoned grandpa. Elmer’s aunts want the court to reform the will to exclude Elmer. The probate statute prohibits reforming a will, except in enumerated circumstances.

• Majority: Our goal must be to effect the legislature’s intent. Mechanical application of the law here would cause an absurd result that the legislature would not have intended. The legislature cannot account for every eventuality when it writes the laws. It is for the courts to decide what the legislature would have done had they considered such a question. Held, the statute implicitly allows reformation of a will to exclude the testator’s murderer.

• Dissent: The statute is pretty detailed as it is, and it would take a big failure of imagination not to have considered this question. We are better off assuming that its absence is intentional.

  1. Intentionalism

• Intentionalism strives to “get inside the mind” of the legislature that passed the law.

• Intentionalism is narrower than purposivism; it specifically addresses how this legislature would have resolved a particular problem if it had considered the question.

• Intentionalism is less concerned with what the court thinks the law is designed to do and more concerned with what the legislature that passed it would have done.

Church of the Holy Trinity v. United States: Immigration statute makes it illegal to encourage, assist, and pay in advance to bring someone to the U.S. to perform “labor or service.” The Church contracted with a pastor in England to come preside over their church in New York. Is the pastor exempted from the statute?

• Analysis: The word “labor” in the statute might be construed to exclude “brain-toilers,” but the word “service” is also included. Additionally, the statute explicitly exempts a number of brain-toilers, yet clergy are not on the list (expressio unius). Yet a committee report suggests that the evil the statute was designed to remedy was the surge of manual laborers into the nation’s industries. The court uses this as justification to effectively reform the statute to better serve the “purpose” that it thinks Congress had in mind when it wrote the law (Purposivism). Furthermore, the court states that because the U.S. is a “Christian nation,” Congress could not have possibly intended the law to exclude a clergyman from immigrating to the U.S. (Intentionalism).

  1. Textualism

• Textualism is close to intentionalism in its goal; it only differs in the sources it will examine to get at meaning.

• Textualism privileges the statute itself above all other interpretive sources.

• Textualists use canons of construction to interpret the language of the law itself (as well as what is conspicuously absent) according to legal norms to resolve ambiguity.

• Textualists distrust other materials as reliable sources of meaning. They are wary of cherry picking sources and subverting the function of the legislature itself in determining what the law says.

• A textualist who encounters an absurd result of the plain meaning of the law might say that it is the legislature’s job to fix the law if it does not legitimately intend that result; it is not for the court to put words in the legislature’s mouth. A legislature who knows they can rely on the courts to fix their legal errors is a legislature with no incentive to draft good law.

Progressive v. Harris, Smith: Statute requires insurers to give a particular notice to the insured in the initial contract. Π didn’t use the language verbatim; it substituted the world “responsibility” for “liability.” Held, the language of the law does not permit us to accommodate even a minor deviation. It is not the court’s role to imprint its policy preferences on the law.

Brogan v. U.S.: Making false statements to a government officer in the course of an investigation is made a crime by law. Question: does this apply to the exculpatory “no”? Δ argues that the law only applies to lies which “pervert government functions,” and that lying to an investigating policeman or prosecutor about your guilt wouldn’t pervert government function provided said official was doing his job.

• Analysis: The court looked at legislative history regarding the law; it was intended originally as a law to protect the government from fraudsters. But later, it was expanded to include lying about “any matter” to “any department.” The history is pretty clear that the law is meant to criminalize private acts of fraud; nonetheless, there is no way to read the actual wording of the statute to except the exculpatory no. Held, the exculpatory no is criminal under the statute.

U.S. v. Marshall: Statute triggers a minimum sentence for carrying a gross weight of a “mixture” of a substance (LSD here). The...