Presentation Transcript

1. How Should Judges Interpret Statutes?

   Francis J. Mootz III Dean and Professor of Law The University of the Pacific, McGeorge School of Law Sacramento, CA USA
2. It is in fact the genius of law that it is not a set of “commands,” but a set of texts meant to be read across circumstances that are in principle incompletely foreseeable . . . It is this fact that gives rise to the intellectual and ethical life of legal thought and argument. James Boyd White, “What Can a Lawyer Learn from Literature?”
3. An Overview of the Presentation: The Historical Context Theories of Interpretation (and their historical development) Our Contemporary Dilemma
4. I. The Historical Context ofLegal Interpretation Not a new question (Aristotle/Cicero) Medieval theological-legal practices The Impact of the Protestant Reformation (sola scriptura) English Common Law; the slow development of legislative supremacy
5. II. Theories of statutory Interpretation Eclecticism (non-theoretical practice) Intentionalism (legislative subjective intent) Purposivism (effectuating the legislative purpose) New Textualism (text as understood at enactment) Pragmatism (judging without firm guidance) Critical Theories (judge as partner to legislature)
6. Ordinance: “No vehicles are permitted in the park at any time, for any reason.” A person rides a bicycle on the park walkway A person rides an electric scooter on the park walkway A person is crossing the park in a motorized wheelchair A municipal worker is using a bucket truck to trim trees A man is pushing his child in a baby stroller on the walkway A police officer drives a cruiser into park in pursuit of a felon A veteran’s group erects a monument with a Humvee from Desert Storm as part of the display
7. A. Eclecticism English Heritage 17th Century establishment of legislative power vs. Crown 18th Century establishment of primacy of statutes American Experience 19th Century limitation of “equitable interpretation” 20th Century explosion of statutes: quest for theory
8. B. Intentionalism Holy Trinity Church v. US (1892) “Unlawful for any corporation, in any manner whatsoever, to … assist or encourage the importation or migration of any alien … to perform labor or service of any kind” Exclude: “Professional actors, artists, lecturers, singers and domestic servants.” Congress deemed to have intended to keep out the “servile classes,” unAmerican-types. We are a “Christian nation.”
9. C. Purposivism Legal Process School: reaction against Legal Realism Reconstruct purpose, but only enforce as language permits Judges implement policy choices, don’t just follow rules. TVA v. Hill (1978) “Federal agencies shall … take such action necessary to insure that its actions do not jeopardize the continued existence of endangered species” “Plain meaning” is enforced to effectuate purpose
10. An aside . . . What about the snail darter?
11. D. New Textualism Construe language per ordinary meaning at enactment. Determine by objective sources (dictionaries; usages). Reject use of legislative history to find “intent.” Read language within context of surrounding text. Canons of construction are permitted (e.g., rule of lenity) Chisom v. Roemer (1991): Is an elected judge a “representative” such that Voting Rights Act nondilution rules apply? Stevens: effectuate broad remedial purpose. Scalia: ordinary meaning doesn’t include judges. Not accepted by the Court: one of the competing theories.
12. E. Pragmatism Recognizes that judges sometimes must fix a mess. Not often admitted openly, but not rare. United States v. Marshall (7th Cir. 1990) Criminal sentence for LSD based on total weight: illogical. Easterbrook: We follow the law; Congress needs to correct. Posner: Law oscillates between two (impossible) ideals: “Severe positivism”: follow the text and remain neutral. “Pragmatic”: “enrich the positive law with the moral values and practical concerns of civilized society.” Judge Posner’s prose is open and honest: the language can “bear” a pragmatic resolution of the problem facing the defendants.
13. “The literal interpretation adopted by the majority is not inevitable. All interpretation is contextual. The words of the statute – interpreted against a background that includes a constitutional norm of equal treatment, a (closely related) constitutional commitment to rationality, an evident failure by both Congress and the Sentencing Commission to consider how LSD is actually produced, distributed, and sold, and an equally evident failure by the same two bodies to consider the interaction between heavy mandatory minimum sentences and the Sentencing Guidelines – will bear an interpretation that distinguishes between the carrier vehicle of the illegal drug and the substance or mixture containing a detectable amount. . . . We should not make Congress’s handiwork an embarrassment to the members of Congress and to us.”
14. F. Critical Theories Add meaning by critically analyzing the purpose. Most aggressive judging: usually in broad remedial statutes. Example: Title VII ban on gender discrimination. Interpreted to prohibit sexual harassment. Interpreted to prohibit hostile work environments. Kathy Abrams: “reasonable woman” standard. Ellison v. Brady (9th Cir. 1991) “We realize that the reasonable woman standard will not address conduct that some women find offensive. Conduct considered harmless by many today may be considered discriminatory in the future. . . . As the views of reasonable women change, so too does the Title VII standard of acceptable behavior.”
15. III. Our Contemporary Dilemma Professor Popkin, Statutes in Court “Ordinary judging provides a weak foundationalist justification for an affirmative judicial role in statutory interpretation without lapsing into either strong foundationalism or descriptive pragmatism. . . . The pressures of time and the need for collegial agreement deprive opinions of the coherence required by any interpretive theory; this incoherence of judicial opinions may even be a positive virtue, paying deference to the multiple plausible theories of statutory interpretation, refusing to insist on any one theory.”
16. Professor Eskridge: Funnel of Abstractness Greater Equity Best answer Pattern of Application Legislative Purpose Specific Legislative Intent Structure of Statute/Context Words of Statute Greater Certainty
17. IV. Deference to Agencies Chevron Two-Step Test: (1) “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.” (2) “If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984)
18. Conclusion: Back to where we began:Judges have a duty that is ethical and not merely technical.Now political actors (agencies) play a large role too.