Legislation Major Outline

I. Purpose vs. Text:

• Legislative Intent/Purpose: 3 Main Sources of Disagreement

  • 1) What Type of Intent Matters?

    • Textualists: Communicative intent only—what meaning did legislature intend to communicate through the words in the statute?

    • Purposivists: Also motivations for passing statute and expected results

  • 2) What Rules About Consulting Intent Should Apply?

    • Textualists: Pre-existing rules and presumptions only

    • Purposivists: OK for court to make ad hoc rules as it goes along

  • 3) What Sources of Information Can Judges Use to ID Intent?

    • Textualists: only the text - ignore things like internal legislative history

    • Purposivists: while there must be some limits, look to any reliable sources such as committee reports and transcripts

• Implied Exceptions into seemingly general statutory language

  • RULE: three general ways to read implied exceptions into laws:

    • (1) Imaginative Reconstruction (Riggs, Church of the Holy Trinity): generally only to resolve ambiguity, unless ad hoc

      • Can be based largely on purposivism (Speluncean Explorers)

    • (2) Fundamental Maxims of the Common Law (Riggs relying on NY Mutual, contra Murchison, Easterbrook on Speluncean Explorers): debate over whether it resolves ambiguity, or can contradict clear language of statute

    • (3) Presumption Against Absurdity (Kirby): cannot read statute to reach absurd results (can be overcome by LH even per Scalia, Green v. Bock Laundry)

    • See also Avoidance Canon allowing exceptions to avoid constitutional questions

  • Riggs v. Palmer (NY 1889, p. 7) – imaginative reconstruction, fundamental maxims of common law

    • FACTS: grandpa gave willed most of his stuff to his grandson. Grandpa later talked about changing it, so grandson killed him.

    • STATUTE: wills stay in effect “except in the cases hereinafter mentioned” but statute did not mention slayer exception.

    • RULE (Majority, Judge Earl): reads implied exception for slayers in both the wills statute and afterward in the statute of dissent to disinherit the grandson.

      • (1) Imaginative reconstruction: reasons that legislature made a general policy for normal situations, and would have made a separate policy for murderers if they had anticipated this.

        • PRO: limits to human foresight; fundamental fairness and better results; maximizing social welfare; on the balance courts might be good figuring out intent; statutes don’t just convey text, they convey policy and we must be sensitive to that policy interpreting the text; legislature can change or communicate if it doesn’t want exceptions;

        • CON: lack of notice (see dissent); costly to litigate; separation of powers concern (court, not legislature); on the balance courts might be bad at figuring out intent; time makes it harder to put yourself in legislature’s shoes; text enumerated exceptions; text is best indicator of intent

        • Today: courts are less likely to engage in ad hoc imaginative reconstruction, and more lifkely to use it only to resolve ambiguity of a statutory term

      • (2) Fundamental Maxim of Common Law: fundamental maxims of the common law can control the operation and effect of generally worded statutes that don’t opt out of them. Thus the nullus commodum principle (no one should be able to profit from his own fraud) implies that this will can’t be enforced

        • PRO: basing on pre-established principles, so not ad hoc like imaginative reconstruction;

        • CON: nullus commodum didn’t apply in all situations at common law (e.g., murderers can retain profits from books about their killing)

        • E.g., Contra: federal statute 15 USC 1593 makes banks liable to consumers for violating duties established for electronic transfers. Statute did not speak to CL accord & satisfaction. Court could read CL into the statute, or it could read it out to protect against banks’ bargaining power. (See also Easterbrook in speluncean explorers)

        • NY Mutual Life v. Armstrong (1886, p. 9) –no statute

          • FACTS: life insurance K; beneficiary kills the insured

          • RULE: CL of contracts leaves room for nullus commodum, but there’s no statute speaking to enforceability of these Ks

          • NELSON: this is a court articulating the common law of contracts absent a statute, whereas in Riggs v. Palmer is a step further because you need to read it into a statute that already specifies exceptions

      • NELSON: Two arguments are related: while doing imaginative reconstruction, may assume that legislature did not want to depart from common law.

    • DISSENT: Legislature intentionally chose a general rule with a limited set of exceptions without an escape hatch, so the court can’t change that. Lack of notice for implied exception. Actors plan their behavior on the text of the statute, not on what courts might do.

      • See Murchison v. Murchison (TX 1918, p. 22): defines the line between when common law can and cannot enter into interpretation. Court incorporated CL to prevent Life insurance K from benefitting slayer beneficiary, but when the payout goes to the estate (of which slayer was heir) via the statute of descent the court did not read statute to leave out the slayer from normal descent rules.

        • Occupation of the Field: Most states (inc. TX) read their descent statutes to occupy the field, i.e. no court-made exceptions. NY in Riggs was the exception.

    • See also notes on interpreting slayer statutes at the end of 1/24/17 and beginning of 1/25

  • Church of the Holy Trinity v. U.S. (1892, p. 27) - Purposivism, Imaginative Reconstruction, Presumption Against Superfluity

    • FACTS: Church contracts with British pastor to pay his moving fees to preach in the US.

    • STATUTE: Section 1 prohibits paying in advance the transportation fees of an alien coming to the US to “labor” or “service.” Section 5 exempts professional artists, actors, lecturers, and singers.

    • RULE (Brewer): Purpose of “labor” in statute is to address cheap unskilled manual labor (Purposivism) and Congress could not have intended to cover...

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