Intro The Legislative Process And Statutory Interpretation Outline

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.

• ...

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