lap chapter #1 part 1 intro and theories 8 13

8/13/2019 LAP CHAPTER #1 Part 1 Intro and Theories 8 13

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Problems? Problems?

How does the statute define a

parent in Sec. 2611? May the DOL promulgate aregulation that conflicts with the Act?


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TVA v. Hill (1978)

Who wrote this opinion? What is the difference between a majority opinion and a

dissent? Tell us about the procedural posture of the case.

District Court Court of Appeals


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TVA v. Hill (1978)

What was the legal issue in this case? What was the holding? Would you have made the same

decision as the majority? How did the majority arrive at its conclusion?

What process did it follow? What common law did it follow?

What did the dissent argue?


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TVA v. Hill (1978)So what have we learned from this case?

2. We first look at the text. Is it clear? Is itsubject to more than one interpretation?

Does a literal interpretation lead to an absurdresult?

What is the purpose of the statute? What effect does subsequent legislation

have?


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TVA v. Hill (1978)So what have we learned from this case?

3. When is it appropriate to look at legislativehistory?a. retroactive legislation is frowned upon.b. repeals by implication are generally not a good

thing.c.after the fact statements by legislators about intent

are generally unreliable and should be ignored.


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Theories of Statutory Interpretation Intentionalism -- most traditional. Jurists attempt todetermine what the legislative body would do in a particularsituation... it is finding specific intent in a specific situation.

Purposivism -- similar to intentionalism, but jurists using itlook for the more general purpose of a legislative action andseek to apply it to a specific situation. What inspired thelegislation.

Textualism -- the language is the key. Rarely do the juristswho adhere to this approach look beyond the text and textualdevices (canons) which aid in interpretation.


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Comments on Legislative Process

Article 1, Section 7, Bicameralism &Presentment:

"every bill which shall have passed theHouse of Representatives and the Senate,

shall before it becomes law, be presentedto the President of the United

7 -- States."


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Legislative Process Overview

Congressional Rules of Procedure Introduction of bills and referral to committees Committee Consideration Floor Debate and Amendment

Reconciliation Presentment Consideration of Vetoes


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Blackstone s Commentaries

p.29

Rules 1-5. Know what they are. You willsee them again.

What theory of statutory interpretation doesBlackstone describe?


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Theories of Statutory Interpretation Intentionalism -- most traditional. Jurists attempt to

determine what the legislative body would do in a particularsituation... it is finding specific intent in a specific situation.

Purposivism -- similar to intentionalism, but jurists using itlook for the more general purpose of a legislative action andseek to apply it to a specific situation. What inspired thelegislation.

Textualism -- the language is the key. Rarely do the juristswho adhere to this approach look beyond the text and textualdevices (canons) which aid in interpretation.


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Church of the Holy TrinityS.Ct. (1892)

Facts Who is Mr. E. Walpole Warren? Where does he live? What role

does he play in our story? What role does the Church of the Holy Trinity play?

Statute provides: It shall be unlawful for any personto prepay the transportation or in

any way assist or encouragealiens into the United States undercontract to perform labor or service of any kind in the United States

What are the stated exceptions? Is a pastor excluded?

Issue: State as a question


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American TruckingS.Ct. 1940

What does this case add to the idea of purposivism? P.44 Read aloud indented paragraph


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W.V.U. Hospitals v. CaseyS.Ct. (1991)

Rule What general rule can you extract from the case, If any? Do we give the rule stare decisis effect?

Application

What factors did the majority consider ?What arguments did the hospital make?How did the Court respond?


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U.S. v. KirbySupreme Court 1868

Who was Farris? Who was Kirby? What did Kirby do, and was it malum in se or malum

prohibitum? What law did Kirby allegedly violate?


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Rationale for Absurdity Doctrine Kirby something absurd contradicts common sense.

Contrary to widely and deeply held societal values. The absurdity doctrine fits comfortably with which school

of thought about statutory interpretation? How does the other major school view the doctrine?


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Public Citizen v. USDOJ(S.Ct. 1989)

Facts

Issue Utilized.

Rule Analysis

Conclusion


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SCRIVENER S ERROR What is scrivener s error? J. Scalia is highly suspicious of the absurdity doctrine.

How does he view scrivener s error?


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Congressional Response Which is easier to correct:

Legislative action to limit a broaderreading of a statute, or

Legislative action to add / broaden anarrow interpretation ?

Does Locke provide a good candidate forsuch correction?

Retroactivity?


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Scrivener s Errors and Absurdity How do they relate? Is scrivener s error just a subpart of the absurdity

doctrine?


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The Importance of Punctuation Given the emerging importance of textualism, punctuation

rules have taken on even more significance in statutoryinterpretation.


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Moskal v. U.S.S.Ct. 1990

Dissent Scalia, O Connor, Kennedy What was their basic disagreement with Marshall and the

majority? Frankfurter: If a word is obviously transplanted from another

source, whether common law or legislation, it brings its soil withit.

Is this a case of ordinary v. technical meaning?Who is the audience of the statute? What differencedoes it make?What is the rule of lenity ?


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Blanchard v BergeronS.Ct. 1989 (p.163)

Holding What did the Court hold?

What was the majority s reasoning? How did it use legislative history? What did the Court say about Johnson and

its holding? P. 164


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Continental Can v. Chicago Truck Drivers 7th Cir 1990 (p.166)

Issue: Does legislative history determine thesubsequent interpretation / meaning of a statutoryprovision? If it did control, whose statement would be more

powerful, Rep. Thompson s or Sen. Durenberger s ? Why?

What did the court hold?How did it reach that conclusion?


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Legislative History

Committee Reports in the hierarchyof reliable to unreliable, where do

committee reports fall? Is there really legislative intent, somethingthat each member of the majority votingon a bill agrees upon?


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LEGISLATIVE HISTORY Controversial Early view The law as passed is the will of the majority

of both houses, and the only mode in which that will isspoken is in the act itself Aldridge v Williams (S.Ct.1845).

1860-1940 sporadic use. 1940 American Trucking (S.Ct. 1940). 1980s Scalia & Easterbrook (v. Posner)


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Legislative History

After the fact floor statements. How do we know that a floor statementwas not actually spoken on the floor butinserted later? I ask permission for my remarks to berevised and extended for the record.What does this mean?


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Legislative History

Statements made during hearings what about statements made duringhearings that did not make it into the finalcommittee report?

Hearing transcripts?

What did Professor Reed Dickerson sayabout committee testimony? P.158


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Legislative History Sponsor s statements

Why are they reliable and given special weight?Why are they unreliable and sometimes dismissed?

Successive versions of a statute Why are they reliable and given some weight? Why are do they deserve little or no weight?

Subsequent legislative action samequestions.


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Use of Legislative History If one accepts the modern view that legislativehistory should be used only when the legislative

text is somehow ambiguous, another question israised: What is ambiguity?

What do we mean by the term probative value ? Within the hierarchy of legislative history, what is

at the top? Put items of history in order ofprobative value.

lap chapter #1 part 1 intro and theories 8 13

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