Public Law/ Legislation & RegulationI. Overview of Public Law

a. Private Law Defines the rights and duties of individuals and private entities as they relate to one another Includes the common law subjects contracts, property, and torts

Common law = judge made lawb. Public Law (aka. government regulation)

Established the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments

c. Limitations of Common Law Adjudication1. Retrospective v. prospective2. Reactive v. proactive3. Uncertainty4. Institutional competence

Courts are designed to resolve concerts disputes between parties, but lack technical skills to craft rules government risk generating conduct

5. Political accountability6. Handles parties v. interests participants

Adjudication is restricted to the parties before the court whereas legislation is open to everyone

7. Collective action problems8. Litigation is dependent on both injury and the wherewithal to bring a lawsuit

II. Introduction to Statutory Interpretationa. Faithful agent v. Partnership model of statutory interpretationb. Brief Overview of the Legislative Process

Congress cannot legislate on any topic without the constitutional authority to do so States, however, have the general authority to legislate on whatever topics they chose so long

as there isn’t some specific legal limitation on their power o E.g., state or federal constitutional provision or valid federal law

Some of the Rules of the legislative process are specified in the Constitution, others are left to the House & Senate pursuant to Article 1, Sec. 5

c. Legislation is difficult to pass – to become law it must: Get sponsored and make it on the agenda Survive the committee Survive amendment and voting on the floor of both chambers Survive a conference where the who chambers resolve any difference Avoid or override a presidential veto

d. 3 Foundational Theories/Approaches of Statutory Interpretation1. Intentionalism

Should try to reconstruct the likely intent of the legislature respecting the problem at hand. What the legislature would have specifically intended if it has confronted the particular interpretive question before the court.

Most traditional approach to statutory interpretation Envision what that specific legislature had in mind when creating the legislation/

passing the bill2. Purposivism

View specific leg. Intent as too difficult to reconstruct. But maintain that judges should advance the purpose or general aims of the statute by looking at a variety of sources

Look to intrinsic & extrinsic evidenceo Intrinsic

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o Extrinsic – things going on in society at the time of passing the legislation Ex. Newspapers

3. Textualism Focus clearly on language of statute, and try to discern how reasonable people would

understand the semantic important or usage of the precise statutory language Congress adopted. Illegitimate to go beyond text to congressional intent.

Look at text of statute onlyNote: Purposivists & Textualists = similarities

Rely on same tools of construction (semantic canons) Grounded in principles of legislative supremacy – acts of congress are supreme (as long as

constitutional) & judges must act as congress’ faithful agents Concerned with legislative intent

e. Cases1. United States v. Marshall

(Does weight of carrier drug (blotter paper) count towards penalties based on weight, when asked what is the “detectable amount?”)

Case presents a constrast between the faithful agent view of statutory interpretation (Eastrbrook) and the partnership view (Posner)

Easterbook (majority – count paper)o focused on the text of the statute to reason that it required a finding of including

the weight of the carrier in determining the sentenceo Easterbrook also concluded that the statutory scheme did not produce irrational

results that Congress didn’t intendo Easterbrook concluded that congress can rely on prosecutors to address the

absurd caseso To Easterbrook, the court was bound by the clear import of the language and felt

it didn’t produce irrational results Posner (dissent – don’t count paper)

o Argued that a literal reading of the statute had the potential to produce irrational results

o Posner concluded by suggesting the majority’s approach wasn’t inevitable because “all interpretation is contextual”

o To Posner, if the statute was applied literally, it would lead to unfair penalties and irrational results

III. Statutory Text and Purposea. Letter of the Law v. Spirit of the Law (can we distill legislative intent?)

This material raises the question, what should an interpreter do when a clear rule reflected in the semantic meaning of a statute appears to fit poorly with the apparent purpose underlying the rule?

Letter of the law (textualist) v. Spirit of the law (purposivist) Judges take different approaches to statutory interpretation where some believe only the

text provides an indication of the legislature’s intent and others believe it’s proper to look beyond the text at times

In the 1980s, judges began to emphasize two theories: o (1) Legislative history wasn’t a good source of intent; and o (2) Statutes are the result of awkward compromises meaning the letter of the law

should be enforced or the court risks undermining the legislative process.b. Cases

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1. Riggs v. Palmer Facts:

o (G-pa makes will which leaves some $ to grandson (Palmer). Grandson, knowing of will, poisons his g-pa)

o NY statute provided, in unqualified terms, what was required for inheritance pursuant to a duly executed will

Holding:o Does not allow Palmer to collect $

Reasoning:o Court considered whether the D could inherit under the wills statute despite the

fact that he’d profit from his wrongdoingo NY Court of Appeals used “rational interpretation” (i.e., what would a rational

legislator intend) noting that “writers of law do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only.”

o Legislation was subject to the common law maxim that no one shall profit form his or her wrongdoing

(Could never been intention of legislature to allow donee who murdered testator to benefit under it)

Dissento Dissent notes that the statute provides specific exemptions for the enforcement

of wills – the situation here doesn’t fall within those exemptionso Additionally, there are countless common law maxims that could apply here –

how does the court decide on just one?

2. Church of the Holy Trinity v. United States (When letter and spirit conflict, spirit wins) Facts:

o Church wants to bring Warren from England to serve as pastoro US claims this violates immigration law: unlawful to prepay or help transport

foreigners into US under contract to perform labor or serviceo Does churches acts fall within statute?

Holdingo Churches actions were illegal

Reasoning:o Despite noting that the text of the statute is clear, Brewer invokes the “familiar

rule that a thing may be within the letter of the statute and yet not within the intention of its makers.”

o Brewer argued that legislative history supported the narrower reading of the statute because of a statement in the Senate Report

o Next, the title of the bill referred only to labor and not labor and service, suggesting a narrower purpose Titles, however, are general

o Finally, the mischief that inspired the bill was to control the influx of cheap, manual labor

c. The Absurdity Doctrine Statutes should not be interpreted to produce absurd results Both textualists and purposivists agree that when a statute’s plain meaning produces a

result that can only be described as absurd, the application must be rejected3

o Basic idea is that congress has either over or under legislated and adopted a text that produces a substantive result they clearly didn’t intend.

d. Cases1. United States v. Kirby

Facts:o Law says it is illegal for person to knowingly obstruct mail or mail carriero Kirby is a police officer trying to execute arrest warrant against Ferris (mail

carrier)o Did Kirby’s arrest obstruct the mail?

Holding:o No

Reasoning:o This case provides a classic example of the absurdity doctrine because it seems

unlikely Congress would have wanted the result in questiono Despite Kirby’s argument that he didn’t knowingly and willfully retard the mail,

but only did so incident to arrest, the Court based its ruling on the avoidance of absurd result

o Court seems to square its result with the notion of legislative supremacy by suggesting that it will always presume the legislature “intended exceptions to its language” which would avoid injustices, oppression, or absurd consequences

o Premise underlying the doctrine has much in common with strong purposivism – i.e., Congress legislates in haste and with limited foresight leading to unforeseen consequences

2. Public Citizen v. U.S. Dep’t. of Justice Facts:

o DOJ uses ABA for advice on judicial appointmentso Law places restrictions on advisory committeeso Is ABA and advisory committee?

Holding:o ABA is not an advisory committee

Reasoning:o Court acknowledged that the statute, when read in its conventional sense,

applied to the situation at hand – however, straightforward application of statutory language would have produced results Congress didn’t intend

o Invoking Holy Trinity, the Court determined it could search for a narrower intended meaning

o This case seems to raise an issue of political absurdity – the application isn’t absurd because the policy is without justification, but it appears to be a result Congress wouldn’t have intended

Concurring:o Justice Kennedy concurred with the outcome, but insisted the majority

misapplied the absurdity doctrine, as the absurdity needs to “be so clear as to be obvious to most anyone.”

e. New Textualism Judges must hew closely to the meaning of a clear statutory text even when the result

contradicts the statute’s apparent purpose, however derived. Judges must respect the legislative compromise embedded in the statutory text.

f. Cases cont.3. West Virginia University Hospitals v. Casey

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Facts:o 42 USC §1988, court may allow prevailing party a reasonable attorney’s fee as

part of costs.o Trial court found expenses for expert witness part of attorney’s feeo Q: Does “attorney’s fees” encapsulate expert expenses?

Holding:o No – “attorney’s fees” does not include expert expenses

Reasoning:o Court determined that while the term “attorney’s fees” could include non-

attorney expenses, but the record of statutory usage demonstrates attorney’s fees and expert fees are separate and distinct

o Court rejected the purposive argument made by WVUH that the statute should be construed broadly because it was meant to overrule Alyseka wherein the Court rejected expert witness fees

o Majority notes that even if the purpose was broad, the means chosen in the statute were narrow – this is simply evidence that the legislative process is one of compromise

Dissento Dissent suggested the Court was doing the country a disservice by ignoring

persuasive evidence of Congress’ purposeIV. Ordinary Meaning, Special Meaning, and Context

a. What is the Text? Starting point for legislative interpretation is the text Courts used to suggest that language could have intrinsic meaning

o However, courts have shifted from that approach and have accepted that language has meaning because it reflects practices and conventions shared by a community of speakers and listeners

When the courts should use the ordinary meaning of a term or its scientific/technical meaning

o Generally, the courts apply the ordinary meaning unless the word is understood to have a technical or specialized meaning

o At times, the determination depends on context – some judges criticize the use of dictionaries to make these determinations because they fail to take context into account

b. Cases1. Nix v. Hedden

(Presume to give words their ordinary meaning) Issue:

o Are tomatoes fruits or vegetables? Holding:

o Tomatoes are vegetables Reasoning:

o Court framed the issue as one of technical meaning v. ordinary meaningo Nothing in the statute informed the court as to which meaning was the

appropriate oneo At times, the context of a case can help judges decide which meaning is more

appropriate – but, when it doesn’t what resources should courts consult to decide

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o Here, the court noted that there was no evidence that “tomato” had acquired a special meaning in trade or commerce

o Ultimately, the court uses the ordinary meaning which comports with the general rule of construction that statutory language should be given its ordinary meaning unless the legislature has specifically indicated otherwise

2. Smith v. United States (Dictionary use v. colloquial use) Facts:

o Smith exchanges gun for drugso Law makes it a crime “during and in relation to any crime of violence or drug

trafficking crime, uses or carries firearm.”o Q: is using a gun to barter for drugs “use”?

Holding:o Bartering with a gun is “use”

Reasoning:o Court relied on the dictionary definition of the word “uses” to conclude that

Smith’s handling of the gun was an offense under the statute o In doing so, the Court noted there were other provisions within the statute

which referred to using guns as items of commerceo The majority responded to this argument by suggesting that congress didn’t

specify it meant the use had to be as a weapon – if they had intended such a narrowing, they could have written the statute that way

o Additionally, while the dissent suggested one way to use a firearm, there are countless others and broader definition fit more squarely with the overall structure and purpose of the statute

Dissent:o The dissent argued that the ordinary meaning here was much narrower – to use

something ordinarily means to use it for its intended purposeV. The Legislative Process and Legislative History

a. Textualist Critique of Legislative History Textualists (most notably Scalia and Easterbrook) criticize the use of legislative history as a

means of determining legislative intent because of its ability to be manipulated and inherent unreliability

Purposivists argue that legislative history can be an invaluable source of legislative intent – in some respects, it’s a better source than a dictionary because its actually generated by the legislature

b. Cases1. Blanchard v. Bergeron

(Uses committee report as authority) Facts:

o Statute at issue allowed prevailing Ps to recover “reasonable attorney’s fees” – here, the P and attorney had a contingency fee arrangement

Holding:o Attorney’s fee is not set by contingent-free cap

Reasoning:o The Court notes that the House and Senate Reports referred to a 12 factor test

set forth in a 5th Cir. Case when discussing what constitutes “reasonable attorney’s fees”

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o In dicta, the other case provided that the fee award shouldn’t exceed the amount the P is required to pay – however, in 3 other cases mentioned in the committee report, the courts “correctly applied” the test holding that a contingent fee arrangement was a factor, but wasn’t dispositive.

Concurrence: Scalia’s concurrence attacked the majority’s reliance on committee reports for a few reasons:o Congress is elected to enact statutes not pint to cases – bicameralism and

presentment argumento Only a small portion of the members of Congress read either of the committee

reports before voting and for those that did, he doubts they consulted the caselaw referenced

o Concerned that interest grounds can manipulate the process, he suggested the cases were inserted by a staffer at someone’s suggestion

2. Continental Can (Dismisses statements of one legislature) Statute imposed liability on employers who withdrew funds from underfunded

pension plans if “substantially all” the contribution were made by employers engaged in a specific profession

Q: what does “substantially all” mean? Prior to the bill’s passage, Rep. Thompson (House Floor manager) gave a floor

statement suggesting that “substantially all” meant 85% or more in accordance with IRS rules

House passed the bill The next day, the Senate passed the bill Senator Durenberger (the bill’s Senate sponsor) inserted a statement into the Record

stating that “substantially all” meant a majority The bill then went to conference, was passed by both houses, and signed by the pres. 2 months after passage, Durenberger inserted another statement into the record

suggesting that because the legislation originated in the senate, his interpretation should govern

Easterbrook noted that none of Durenberger’s statements were before legislators before they voted on the bill

Rep. Thompson’s view was also in line with a frequent meaning of the phrase and are “terms of art”o Because language is an exercise in shared understanding, one idiosyncratic

viewpoint doesn’t countVI. Introduction to the Canons of ConstructionA. Semantic Canons

The canons are interpretive principles or presumptions used by judges to derive statutory meaning (Semantic & Substantive)

Linguistic tools that reflect generalizations about how the English Language is used an commonly understood

These canons are meant to reflect how we ordinarily use and understand language Many believe they provide an objective means of decoding legislative signals in the text – as

lawyers, we use them to justify specific readings of the text and distinguish those that don’t help our case

However, the canons fail to provide a clear, easy to apply, black letter system of interpretive rules – often, more than one canon can apply and how the judges apply the canon can dictate one outcome over another

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1. Expressio Unius When the statute explicitly expresses or includes certain things, others are implicitly

excludedo Ex. Ordinance provides that dogs can enter a park – because the statute doesn’t

mention cats or other animals, assumption under this canon would be that they can’t enter the park

2. Noscitur a Sociis A word’s meaning can be clarified (and often narrowed) by the words around it, i.e.,

a word is known by its associateso Ex. The statute provides that explosives taken into a mine must be in a case or

canister. The D brought the explosives into the mine in a cloth bag. Using this canon, the court determined a cloth bag isn’t a case because the reference to a canister implied that the case had to be of the same strength as a canister.

3. Ejusdem Generis “Of the same kind” Courts read the general residual term at the end of a listing of more specific terms

more narrowly in a manner that is similar to the items specifically mentionedo Read general term, so that it encompasses only things that are sufficiently

similar to items that are specifically mentionedo Ex. Statute allowed the government to sell “gravel, sand, earth, and other

material” – the court read this statute to disallow the same of timber as a “material” because it wasn’t similar to the items specifically mentioned

a. Cases1. McBoyle v. United States (ejusdem generis)

Facts:o Statute prohibited the transport of a stolen “motor vehicle” – motor vehicle

was defined as included “an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed for running on rails”

o Q: does an airplane fall into this definition? Holding:

o No – airplane does not fall into def. of “motor vehicle” for purposes of statute. Reasoning:

o Justice Holmes relies on everyday speech or colloquial understanding of what a “vehicle” is to determine that a vehicle is something that runs on land not in the air or water

The ordinary meaning here excludes a particular application even if a technical or literal meaning would include it

o Justice Holmes also infers from legislative history that because airplanes weren’t included or mentioned in the committee reports or congressional debates that Congress clearly didn’t intend for the statute to apply to airplanes

o Finally, Holmes also employs both a semantic canon and a substantive canon Ejusdem generis to suggest that the phrase “other self propelled vehicle”

is narrowed by the terms preceding it and all of those referred to vehicles that travel on land

Rule of lenity – Criminal statutes that are ambiguous should be read narrowly to allow for “fair notice”

2. Gustafson v. Alloyd (Noscitur a Sociis)

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Facts:o Company sold for present value & projected growth. Both numbers turn out to

be lowero §12(2) purchaser of stock entitled to recession if seller made material

misstatements by manner of prospectus o Q: Does sales contact count as prospectus?

Holding:o Yes – Sales contract is Prospectus

This case involves three different semantic canons of construction 1) The Court employs the presumption that an identical word or phrase should have

a consistent meaning throughout a statuteo The court begins by looking at section 10 of the statute to help it

determine what the meaning of the word prospectus should be in section 12(2) (the substantive provision at issue in the case)

o As an aside, this canon is similar to the in pari materia canon which presumes a word has the same meaning in different statutes (e.g., “attorney’s fees” in West Virginia v. Casey)

2) The court uses the Noscitur a Sociis canon when examining the definitions in section 2(10)

o In the absence of a definition section, one might conclude a sales contract isn’t a prospectus because of the technical/specialized meaning of the term (a legal document that describes securities offered for sale)

o The court doesn’t accept the argument that the contract here was a prospectus under the definitions because it constituted a communication since the term communication is narrowed by those around it

o All the other terms applied to documents that are widely disseminated 3) The court applied the presumption disfavoring superfluous statutory language

o The majority suggests that a broad reading of the term communication would render the other terms in the definition unnecessary because all of them could fall under that definition

3. Silvers v. Sony Pictures (Expressio Unius Canon) Facts:

o Silvers not original holder of copyright. Later assigned by F&B Films.o §501 allows the legal or beneficial owner to sue for copyright violationo Question before the court was whether Ms. Silvers, who isn’t the actual owner of

the copyright, is allowed to sue under the Copyright Act Aka. Can assignee have a §501 cause of action?

Holding:o No - §501 does not confer assignee

Reasoning:o Section 501(b) of the statute allows the “legal or beneficial owner” of a copyright

to sue for infringement, but makes no provisions for someone who isn’t the owner, but had been assigned the right to sue

o Court begins by looking at the statutory language and concluding that someone has to be the owner of an exclusive right under a copyright

o Section 106 of the statute provides a list of “exclusive rights” and the right to sue is not listed as one of them

However, section 201(d) says that any exclusive right under a copyright may be transferred including those listed in section 106

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o The court invokes the expressio unius canon to suggest that section 201(d) doesn’t create any additional exclusive rights and that the listing of rights excludes any that haven’t been explicitly provided for

While the statute provides a listing of the people who may sue, the court reads this as a prohibition of anyone else not listed

Dissento The dissent argues that the legislative history supports the inference that

copyright assignees have the right to sue as the amended act was meant to expand the prior act

4. People v. Smith (Ejusdem Generis Canon) Facts:

o State criminal statue made it a crime to carry a “dagger, dirk, stiletto, or other dangerous weapon other than a hunting knife” – smith was arrested for driving with an M-1 rifle hidden in his car

o Q: is M-1 rifle a concealed weapon? Holding:

o No – statute only applied to stabbing weapons – not gun Reasoning:

o Court used the Ejusdem Generis canon to determine that the statute applied to stabbing weapons

o Case raises the question of how courts should determine what the relevant common characteristic is

5. Circuit City Stores v. Adams (Ejusdem Generis Canon) Facts:

o Adams signs employment contract which includes binding arbitration of any employment disputes

o In 1925, Congress passed the FAA to make it easier for private parties to enter into contracts that made disputes subject to arbitration

o Section 2 of the Act provided that a written arbitration clause in any contract concerning a transaction “involving commerce” would be valid and enforceable

o Section 1 of the Act creates an exemption for “contracts of employment of seamen, railroad workers, or any other class of workers engaged in foreign or interstate commerce”

o Q: is Adams contract exempt from FAA coverage under §1 Holding:

o No – Contract is not exempted by §1 Reasoning:

o Adams attempted to argue he wasn’t covered by Section 2 – i.e., this contract didn’t involve commerce

o The court rejected that argument suggesting that a narrow reading of section 2 renders section 1 unnecessary

o Additionally, the court had already decided that the language “involving commerce” meant Congress intended to exercise its power to the limits of its constitutional authority

“Engaged in commerce” follows reference to seamen and railroad. There would be no need to list those if the term subsumed them. Apply ejusdem generis. Seamen and railroad employees move goods. §1 applies to those kinds of workers.

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o Here, the court determined that the listing of specific workers in section 1 limits exemption to workers engaged in transportation and that this section is not meant to be elastic in the same manner as section 2

B. Substantive Canons Judicial presumptions in favor of a particular outcome (favoring/disfavoring certain results)

o Unlike the semantic canons, the substantive canons are presumptions the court adopt either in favor or against specific results

These canons may be strong or weak depending on the canon and the circumstances surrounding its application

Some reflect background constitutional values whereas others reflect considerations of justice and policy that makes courts reluctant to reach a certain decision without a clear statement from congress that it intended that result

o Clear Statement Rule : Courts will construe statutes to favor a certain substantive result unless statute not only indicates a contrary result, but does so with greater clarity than would ordinarily be required.

a. Avoiding Constitutional Questions In part, this canon stems from the Court’s discomfort with Marbury v. Madison and the Court

having proclaimed itself the final arbiter of the Constitution Classic – would the interpretation lead to an unconstitutional result? If yes, is there an

alternative interpretation. Modern – would an interpretation raise a serious constitutional doubt or question? If yes, find

another interpretation that is “fairly possible.” (Don’t actually determine whether the interpretation would actually be unconstitutional)

Courts may prefer to address statutory issues first because constitutional adjudication is: 1) Difficult to undo;2) May sweep broadly, affecting other areas of law;3) May be more likely to create inter-branch conflict and damage the Courts legitimacy; and 4) May intrude into the prerogatives of the political branches

On the other hand, is it wise to consider statutory issues first to avoid constitutional questions since:

1) Judicial elaboration of constitutional norms is desirable because it clarifies law and refines doctrines;

2) There may be judicial efficiency reasons to address constitutional issues first when the statutory issues are complicated and appear to present clear constitutional issues

i. Cases1. NLRB v. Catholic Bishop of Chicago (affirmative expression or else avoid)

Facts:o In 1935, Congress passed the National Labor Relations Act, which created the

federal statutory framework for collective bargaining between labor unions and employers

o Under section 8 of the Act, it’s an “unfair labor practice” for employers to interfere with the rights of workers to unionize

o In this case, a group of Catholic school teachers who taught secular subjects wanted to organize a union and went to the NLRB (the agency that administers the NLRA) to recognize their union and require the Bishop to bargain with them

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o Bishop asserted that the NLRB didn’t have jurisdiction because the NLRA cannot constitutionally extend to religious organizations, as that would interfere with the free exercise clause under the First Amendment

o Q: are catholic schools an employer under Sec. 2 of the NLRA? Is this an impermissible entanglement of government and religion in violation of the 1st Amendment?

Holding:o Avoid the constitutional question (Burger)

Reasoning:o In this case, the court didn’t rule that applying the NLRA to religious

institutions would violate the First Amendment – in other words, the Court avoided the difficult constitutional question here rather than reading the statute in a way that would save it from invalidation under the Constitution

o Here however, it’s difficult to suggest that the statute is ambiguous as the term employer in the statute is broad with limited exceptions

o The court invokes a strong version of the canon by reading a broad, but not ambiguous, term in a manner that doesn’t cover constitutionally problematic applications without an affirmative indication that Congress intended this

Dissent:o The weak version, supported by the dissent, allows the court to resolve an

ambiguous term in a way that avoids the constitutional issue but requires a reasonable or possible alternative that could apply even in the absence of the constitutional issue.

b. State Sovereignty - Protecting State Sovereignty and Autonomy Constitutional avoidance canon requires some substantial probability that the otherwise

preferable construction of the statute would actually violate the constitution o Other substantive canons don’t require that the preferable construction

violate any law or the constitution necessarilyo Rather, these canons are designed to further particular substantive values

that are often connected to the constitution To protect the balance between federal and state power the Court has developed a number of

canons that construe federal statutes narrowly to avoid excessive encroachment on the states Longstanding debate about whether the 10th Amendment serves as a limit on congress or

whether it simply states that Congress doesn’t have any power not granted to it elsewhere in the constitution

o Political Safeguards theory: maintains that aggressive protection of state sovereignty (ex. by reading the 10th Amendment as imposing substantive limits on federal power) is unwise & unnecessary b/c the structural provisions of the Constitution (or other political and institutional considerations)

The Garcia case reflects the modern view holding that so long as Congress has the constitutional authority to enact federal statutes, there is no additional substantive limit on its ability to apply those requirements to the states

i. Cases1. Gregory V. Ashcroft (Clear statement in order for federal statute to apply to particular

aspects of state government) Despite the Garcia holding, some Justices felt troubled by allowing federal intrusion

into core state functions and used substantive canons of construction to act as a limit Facts:

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o Missouri Constitution provided the judges over the age of 70 were subject to mandatory retirement (excluded municipal judges)

o Court considered whether this provision violated the ADEA, a federal statute addressing age discrimination in employment

o ADEA applies to employers and defines them to include “a state or political subdivision of a state”

Holding:o ADA does not cover state judges.

Reasoning:o Design of our government was to protect against abuses of government power

– court recognizes there must be a proper balance between the states and the federal government

o Court notes that congressional interference with the decision of the people of Missouri to require this mandatory retirement would upset the balance of powers

Therefore, the court must “be certain of congress’ intent” before finding that federal law prevails

o Court required a “plain statement” from congress that it intended to upset the balance

o Court held it didn’t need to consider the limits the state-federal balance places on Congress’ powers under the commerce clause because it could decide the case by finding that the ADEA doesn’t apply to state judges

Definition of “employee” included “appointees on the policymaking level”

Court doesn’t look for a plain statement that judges are excluded, but rather looks for a plain statement that Congress meant to include them

Because the exclusion is sufficiently broad, the court will read it as though it could

Concurrence o Doesn’t agree with the majority’s application of the “plain statement rule” – in

other cases where this was used, it was unclear whether congress meant for the statute to apply to the states at all – this isn’t the case here.

c. Preemption of State Law - Federal Preemption of State Law Supremacy Clause in the Constitution makes clear that when there’s a conflict between a state

law and a valid federal law, the federal law is supreme/ takes precedence This is conditioned upon the federal government acting pursuant to a “legitimate source of

constitutional authority” Two broad types of cases:

i. Express Preemption – Federal law contains explicit provision that declares categories of state or local law preempted.

ii. Implied Preemption – No express languagea. Conflict: irreconcilable conflict between state and federal lawb. Obstacle: state law a sufficient obstacle to achievement to federal law

objectivesc. Field: federal regulation so pervasive that Congress has expressed its desire

to legislate all.i. Cases:

1. Rice v. Santa Fe Elevator Corp. (presumption can be implied, unlike federalism canons)

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Classic Case for the presumption against preemption – involves implied preemption because there isn’t an express preemption clause in the statute

Facts:o Federal statute empowered the secretary of Agriculture (a Federal official) to

regulate licensing of grain warehouseso Fed statute regulate in an area. Because they regulate, is the whole area shut

out, or just the subjects the federal regulation touches, leaving the rest for the states?

Holding:o Federal law preempts all

Reasoning:o Despite state that it will apply a presumption against preemption of state

statutes, the Court fond the statute did preempt state law because the state laws would present an obstacle to the achievement of the statute’s purposes as stated in the legislative history

Dissent o Took issue with the fact that there wasn’t an actual conflict and the court

upset an entire body of state laws2. Cipollone v. Liggett Group (clear statement rule to express preemption clauses. But we

will find preemption in absence of express clause?) Facts:

o Cipollone initiated a lawsuit against tobacco company under a variety of state common law theories of liability

o Defendant asserted that her claims were preempted by the federal Cigarette Labeling and Advertising Act

o The Act required cigarette packages to contain a warning, but included an express preemption provision that said no other statements regarding smoking and health, other than that required by the federal statute, shall be required.

o In 1969, Congress amended the statute to strengthen the wording and ban cigarette advertising

o The 1969 amendment also modified the wording of the preemption provision to preclude the states from imposing any requirement or prohibition based on smoking and health with respect to advertising or promotion

o Q: does this preempt state common law? Holding:

o State claims are not preempted Reasoning:

o Where there is an express preemption provision, the court won’t infer additional congressional intent to preempt

o Court determines that the express preemption provision applied to both state statutory as well as common law, but because of the presumption against preemption, the majority narrowly construes the provision

Dissento Scalia criticizes the majority’s holding that express preemption provisions be

construed narrowly and thinks it presents “mischief”

d. Scope and Application of Substantive Canons - Scope and Strength of Substantive Canons

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Calls into question how judges determine the scope and strength of substantive canons, highlighting the fact that even they can’t agree

From Congress’ perspective, the substantive canons are particularly problematic in the sense that they are difficult to predict and control

To require judicial avoidance of the use of a canon, Congress would need to write that into the language of the statute, but there are questions about how that expression would need to be and there is always the possibility the court will simply develop a new canon as substitute (e.g., Gregory v. Ashcroft)

Many suggest that the substantive canons are unrealistic reflection of the legislative process, as Congress can’t take into account every substantive text of a statute

In addition, the application of a substantive canon in a case where the Court is adopting a construction of the statute that isn’t the preferable one in favor of some substantive result that reading of the statute may apply in other situations where the same value isn’t at issue.

i. Cases1. Zadvydas and Clark

Both the Zadvydas and Clark cases were considering a provision of the immigration laws that allows for detention of aliens pending removal (deportation)

In Zadvydas, the Court held that admitted aliens (those who had entered the US) subject to removal could not be held indefinitely pending their removal

o The court based its holding on an inferred 6 month time frame that it read into the statutory language because it was avoiding the constitutional question of whether indefinite detention of admitted aliens posed due process concerns

Thereafter, the Court was presented with the Clark case – the aliens in this case were inadmissible because of prior criminal charges and ordered to be deported

o Because these men had never been admitted to the US they weren’t entitled to the same rights as US citizens and, therefore, their case didn’t present the same constitutional concerns as the Zadvydas case

o However, because the court read a time limit on detention into the statutory provision in Zadvydas, it ruled that it needed to be consistent and read the statute in the same manner in this case even if it didn’t present the same constitutional considerations

This is known as the “lowest common denominator principle” These cases provide an example of the harms (or in the Clark case, the

benefits, but unintended consequences) that might result when the court avoids the constitutional question and engages in a reading of the statute that strains what congress likely intended.

Foreign Relationso Interpret federal statutes to avoid violation of international treaties, international

executive agreements, and inconsistency with customary international law.o Disfavors extraterritorial application of US law.

2. Spector v. Norwegian Cruise Lines (Foreign Relations)

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Facts:o Title III of the Americans with Disabilities Act requires public

accommodations to make necessary modifications and alterations to provide accessibility for individuals with disabilities

o In this case, the Ps were attempting to argue that Title III of the ADA applied to foreign flagged ships (those that may depart from or come to the US, but are registered in a foreign country)

Reasoning:o The court determined hat it was clear that cruise ships were covered

under Title III, as a general mattero The plurality held that the ADA did apply except to the extent that it

would interfere with the internal affairs of the foreign flagged shipso It was significant to the court that Cruise ships flying under foreign

flags offer accommodations and travel services to over 7 million Americans each year, meaning the US has a considerable interest in protecting its citizens against violations of the ADA

o Consequently, despite the fact that the court typically required a clear statement from Congress when it intended for a law to apply to foreign flagged vessels, the application of that statute; rather, the outcome of any individual case would depend on whether there would be an effect on the internal affairs of the ship.

Critique of the plurality opiniono The critique of the plurality’s opinion in this case rests on the same

theory the Court applied in Clark – i.e., the court can’t take the same statutory provision and suggest that it applies to foreign flag vessels but doesn’t apply if the internal affairs aren’t at issue

Dissento The dissents argued that the same construction must govern in both

instances and the court cannot narrow Title III on a case by case basis depending on whether it makes a factual determination that it applied to the in kternal affairs of the ship or doesn’t

o In other words, since some application of title III would apply to internal affairs of the ship, absent a clear statement from Congress that if intended this, the Court must find the statute inapplicable even if some applications wouldn’t require a clear statement to allow for consistency in application.

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