Legislation and Statutory Interpretation Law 5745

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Legislation and Statutory InterpretationLaw 5745

• Professor Richard C. Reuben
• Class 13-3
• April 18, 2008

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BFP v. Resolution Trust Corp. (1994)

• Key Facts
• Section 548 of Bankruptcy code permits bankruptcy
  trustees to cancel fraudulent transfers if
• Debtor had interest in the property
• Transfer occurred within a year of bankruptcy
• Debtor insolvent at time of transfer, or made
  insolvent by the transfer
• Debtor received less than a reasonably
  equivalent value in exchange for such value
• Question Does statute require reasonableness
  inquiry?

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CanonsThe Llewellyn Critique

• For every canon there
• is another canon that
• makes the opposite point
• -- Newtons Third Law
• of Motion
• Implications
• Canons at best are a
• secondary tool of
• construction
• Use in support of other arguments
• Focus on other tools first
• Especially text

Sir Isaac Newton
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Legal Process Theorys Response

• Meaning depends on context
• Context will determine which of the canons one
  should use
• Canons simply provide answer to the question of
  whether a particular meaning is linguistically
  permissible

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Critical Legal Theory Critique

• Canons used to suppress alternative ways of
  thinking about issues
• Merely reaffirms the status quo
• Based on faulty assumption that legislature is
  rational, methodical
• Shapiro Response Canons provide for legal
  stability because they provide a rule of decision
  in close cases that preserves the status quo

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Law and Economics Defense

• Canons best thought of as ex ante rules
• Provide a set of rules thats better than nothing
• Provide interpretive regime that provides some
  predictability
• Operate as default rules unless legislature
  specifies otherwise
• Fosters democracy by encouraging deliberation by
  legislature

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Pragmatic defense

• Some canons -- e.g. linguistic -- are essential
  to communications process and are an inevitable
  result that process
• Provides a checklist of things courts should
  think about when approaching a statute
• Expressio Unius Why didnt legislature include?
• Whole Act Rule What does rest of statute say?

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Sunsteins defense

• Substantive canons provide a vehicle for
  integrating public law values into judicial
  decision making
• Engage constitutional principles in statutory
  cases
• Avoidance
• Due process
• Rule of law values
• Respond to institutional concerns
• Presumption of judicial review
• Presumption against implied repeals
• Counteracting Statutory failure
• Presumption of political accountability
• Presumption of proportionality (overzealous
  implementation)

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Brudney Ditslear Study of Canons (2005)

• Studied 630 U.S. Supreme Court Opinions invoking
  canons between 1969 and 2003
• Findings Ideology matters
• Rehnquist court relied on linguistic canons more
  and legislative history less than Burger court
• canons vs. legislative history, canons win
• Conservative justices used canons to justify
  conservative results, visa versa
• Especially in close cases
• Conservative justices tend to use canons to
  undermine liberal legislation
• Canons can be substitute for judicial expertise
  in technical areas, such as ERISA andbankruptcy

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Interpretive Instructions

• Statements in statute that tell courts how to
  interpret statute
• E.g. RICO statute says the provisions of this
  title shall be liberally construed to effectuate
  its remedial purpose
• Not as strong of an interpretive aid as the
  substantive provisions of the statute
• Aid for resolving ambiguity, not creating it
• Question What impact should interpretive
  instructions have on the courts?

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Extrinsic Sources of Statutory Interpretation

• Definition Sources that courts consult to
  interpret a statute that exist outside the four
  corners of the statute
• Common Law
• Legislative History
• Other statutes

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Smith v. Wade (1983)

• Key Facts Mo state prison inmate brought Section
  1983 action against prison guards
• Alleged he was beaten by other prisoners and
  guards didnt do anything to stop it, even though
  they knew it was likely he would be beaten
• Sought punitive damages against guards
• Legal issue What is the standard for determining
  whether punitive damages would be available?
• Prisoner reckless disregard or indifference
• Guards actual malicious intent
• Question How did Justice Brennan use the common
  law?