2.

Statutory Interpretation by Courts

Topics (2):
A. The challenges of interpretation
Scriveners’’ errors (330-34)
Absurdity (Green v. Bock Laundry)
B. Intro to interpretive tools and theories (223-37, 401-08)
C. Text-based tools
1. Ordinary meaning and technical meaning (237-50)
2. Textual canons of construction (250-51, 265-70, 279-92)
3. Substantive canons of construction (292-93, 304-27)
D. Intent- and purpose-based tools - Legislative history (341-73)
E. Changed circumstances (374-86)

● When interpreting statutes, always begin with intrinsic sources of meaning

○ Ordinary meaning
○ Textual canons of construction
○ Try to understand when strong inference is permitted, and when it’s not

2A Challenges of Statutory Interpretation: Scrivener’s Error & Absurdity

U.S. v. Locke
● Apparent Scrivener’s error: deadline (12/30 or 12/31) for filing requirement
○ No rational explanation, nothing in legislative history to explain why Congress chose 12/30
● How do courts deal with apparent mistakes?
○ Majority: plain meaning, should be literal for arbitrary things, like deadlines
○ Dissent: “it’s a trap”
● Who should take responsibility for Scrivener’s error or absurd result?

Green v. Bock Laundry

● Statute’s plain meaning: impeachment shall be admitted b/c
○ More than 1 year
○ Not prejudicial to defendant
● Majority focuses on conf committee report
○ “The conf committee report clearly disregarded prejudice to witnesses other than Ds and focused on the danger of
conviction based on prior criminal record
○ Congress would not have intended to change existing law without indicating that it was doing so
● Scalia & Stevens: Why would congress intend this result? A literal interpretation would be absurd
● Scalia (concurrence)
○ Usually does not agree with Stevens, but does here “a literal interpretation would be absurd”
○ Consults legislative history to consider whether Cong. foresaw this problem and intended absurd result
○ Looks at Constitution and Fed. Rules of Evidence
○ Courts choose to apply ordinary usage to provide fair notice - should not need a law degree to understand US code
● Blackmun (dissent)
○ Looks to overarching purpose of 609 and Fed Rules overall
○ Uses rationale of adoption of rule (to prevent danger of improperly influencing outcome of the trial)
○ Attacks use of legislative history
○ Conf. committee supports Stevens’ view, but conf committee would focus on criminal defendant as example
because quintessential example of someone who could be prejudiced by impeachment evidence; best example,
but not only example

Stretches language to its breaking point:

“Defendant” means…

a. Civil plaintiff, civil defendant, prosecutor, and Blackmun dissent

criminal defendant

b. Civil plaintiff, civil defendant, and criminal

defendant

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2. Statutory Interpretation by Courts

c. Criminal defendant Stevens majority

Scalia concurrence

d. Civil defendant and criminal defendant •Most literal

•But absurd?

● Consider applying this court to TVA v. Hill

○ Scalia would enjoin the dam
■ Text: all federal agencies must
■ Authorized, funded, carried out
■ Is it absurd to disregard $100mil project when endangered species discovered after the fact?
■ Ideas of few do not reflect whole
● Appropriation = few
● AIr force bombing example = few
● Neither ^^ voted on and signed
■ Would probably write concurrence without reliance on legislative history; instead would find meaning via
ESA and code as a whole

2B Intro to interpretive tools and theories (223-37, 401-08)

● Competing theories
○ Intellectual history of American law

○ Every dominant theory emerged as a reaction to the theory of the time - all offer competing descriptive and
normative claims
■ Parallels history for major interpretive theories
● Intentionalism
○ Legislative intent
○ How did original enacting legislature intend this language
● Imaginative reconstruction
○ Posner
○ What would original enacting congress have wanted had it anticipated this problem
● Purposivism
○ Interpret in a way that searches their broad overarching purpose
● Legal process purposivism
○ Harden Sachs calls “mischief” rule - what was mischief/problem Congress trying to
address?
○ What would reasonable legislature want us to do?
○ Critique: judges would take creative liberties/abuse
● New textualism
○ Scalia, Easterbrook
○ Because that’s the only democratically - legitimate body of text we should use
○ Formalism
■ Law as a science, disciplined reasoning, application of precedent
■ Roots - Christopher Columbus Langdell (also Socratic method)
○ Realism
■ Believe it is a fiction that judges don’t make law (they uncover it), almost like a natural law

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2. Statutory Interpretation by Courts

■ Judges are really making law, and very discretionary

■ Nihilistic
■ Indeterminate
○ Codification movement
■ Put everything in statutes/codes (more democratic)
■ “Age of statufication”
■ Brought us restatements and the UCC
○ Legal process
■ Hayden Sacks (sp?)
■ Statutes and judge-made law legitimate, as longa s they adhere to procedures/precedent/engaged in
rigorous analysis
■ Congress and courts should recognize each other’s competencies
○ Rights movement
■ Emphasizes equal rights and due process
■ Earl Warren, Harry Tribe, Ronald Dvorkin
○ Poverty law
■ Poverty and entitlements
■ Ushered in legal clinics
■ Charles Wright
■ Great Society Legislation (LBJ) - Medicare, Medicaid, SS
○ Law and ___
■ Introduced sociology, anthropology, medicine, economics to understand legal behavior
■ Richard Posner
○ Rational choice, organization theory
■ Try to explain why Congress does what it does and say what courts should do
○ Critical
■ Law and lawmaking not objective exercise
■ Influenced by subjectivity values, societal norms
○ New public law
■ Laws legitimate if product of robust procedure, but ALSO laws must be normatively justified
■ Bill Eskridge
■ Ongoing dialogue should account for modern problems
● Holy Trinity
○ Perfect example of early eclectic approach to statues
○ Funny that they reject plain meaning, but use plain meaning to defend its argument
○ Plain text of statute - church violates (p. 225), court concedes this
○ Why does court not simply stop with plain meaning? Familiar rule (p. 226)
○ Interpretation: focus on process and reasoning
■ 1) Seems to plainly prohibit, court concedes
■ 2) § 5 exceptions list; by omitting ministers, Congress must have intended ministers prohibited
■ 3) Mischief being addressed - flood of unskilled labor which depressed wages for citizens
■ (4-8) To determine purpose
■ 4) Title? Those performing “labor” - court says plain meaning defines
■ 5) Definitions? manual labor
■ 6) Context (mischief)? P. 227
■ 7) Legislative history? Evidence for its reasoning - report said only concerned with manual labor, but not
enough time to amend statutes
■ 8) US history? Not going to prohibit bringing religious person unless Congress explicitly says it’s illegal
○ Legislative history: probably strongest component of argument
○ HTC first case where court used legislative history to override plain meaning
○ Violates canons of construction: rule of superfluousness
■ assume every section/word of statute has meaning and shouldn’t be made superfluous
■ Why include § 5 if Congress intended to exclude all white collar workers
■ Court’s reading renders § 5 superfluous

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2. Statutory Interpretation by Courts

○ General v specific intent

■ General intent
● Statute addresses influx of foreign labor that depressed wages
■ Specific intent
● Look for evidence where Congress 1) considered/anticipated specific issue/contingency/factual
scenario in this case and 2) said what outcome should be
● Did Congress anticipate specific issue in front of court?
■ Purposivism - mostly general intent
■ Intentionalist - specific intent
■ Textualist - best evidence of intent is language they actually agreed on
● Hypos
○ TVA v Hill - debate over whether there is specific intent
○ Note 3 p. 236**
■ Plain meaning - contract prohibited
■ Use § 5 and call bricklayers artists

2C Text Based Tools

2C1 Text Based Tools: Ordinary meaning and technical meaning
(237-50)
Text based tools
● Embrace dictionaries, even though technically extrinsic
○ Viewed as preestablished definitions/rules
● Industry custom/tradition
● Technical definitions
● Judicial canons of construction
● Structural clues
● Entire US code (idea Congress intends to use words consistently unless otherwise expressed)
Ordinary v technical meaning
● Issue: Are tomatoes vegetables or fruits?
○ Import tairiff on vegetable but not on fruits
○ Offer multiple dictionaries
■ Demonstrates definitions can differ
■ Also dictionaries not neutral objective sources of meaning - offers judicial discretion
○ How do judges choose which definition?
○ Calls industry witnesses to understand whether they have any technical meaning - Seems like they could answer
this question by consulting legislative history - more efficient
○ What happens if definitions had changed between writing of statute and case?
■ Most courts will consider definitions of time when statute enacted
○ What factors considered when determining whether to choose ordinary/technical meaning
■ Audience
■ Judicial common law decisions - has precedent already defined term
■ Opportunity to rely on administrative agency expertise
● Industry understanding
● Whether term appears in technical context
■ Didn’t consider purpose of statute (in this case protectionist)
● Muscarello
○ Majority:
■ When word has more than 1 ordinary meaning
● Carry - physically carry
● Carry - on your person, special meaning, general sense of conveyance (in a vehicle, perhaps)
■ Consults:
● Dictionaries - only Black’s defines carry narrowly v broadly - not used because of audience
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2. Statutory Interpretation by Courts

● Great works of literature (including SCOTUS opinion)

● Modern press usage
■ Concludes:
● Difficult to believe Congress intended special meaning (absurd result i.e., HTC, TVA v HILL)
■ Relies more heavily on purpose of statute - legislative history
○ Dissent:
■ Asserts majority took legislative history out of context
■ Offers same evidence supporting narrower definitions
■ demonstrating ambiguity
■ Should apply rule of lenity
○ Use of rule of lenity
■ Defn
● in favor of D
● applies to any statute with punishments penalties
● Based on idea of fair notice
● Substantive canon of construction (vs textual)
● Similar applies to bankruptcy and tax statutes
■ Generally, limit judicial discretion, consistency
■ Majority also invokes rule of lenity - if statute still hopelessly ambiguous, rule of lenity should be a
tiebreaker
■ Dissent uses rule of lenity as presumption that must be overcome
○ After Muscarello
■ Congress amended statutes
■ See dialogue between Congress and courts in response to Bailey v US - where confusion over word “use”
■ Nevertheless, amendment suggests Congress thinks Muscarello got it right

2C2 Text Based Tools: Textual canons of construction

(250-51, 265-70, 279-92)
New Textualist Movement
● Late 1980s
● Leaders: Easterbrook & Scalia
● Should not consult extrinsic evidence
● If plain meaning isn’t clear, consult rest of statute, or consult rest of Code
● Believe legislative history can be manipulated
● Only language debated, amended, voted on, signed should be law
● Courts generally move from narrow to broad when applying
● Highly contested
● Are canons ground in reality? Posner - critique of Whole Act rule

Legal significance of textual canons of construction:

● Rules, principles, presumptions of how we use words together
● Developed by courts
● Not legally binding
● Not controlling
● Operate like rules of grammar
● Assume Cong. Writes statutes with canons in mind because Cong. knows court will use statutes to interpret
● Sometimes courts speak about canons like they are binding

Linguistic Canons
● Grammar, syntax
● Rules / presumptions about how words fit together within a particular provision
● Based on grammar, punctuation, associated words
● Usually only use when it’s an exhaustive, exclusive list. When no outer bounds, and just a list of examples, don’t use.
● Ejusdem generis (“of the same kind”)
○ Lists ending with general term
○ List of examples does not imply exhaustive list

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○ Series of specific items ending with a general term, that general term is confined to covering subjects comparable
to the specifics it follows
○ Will NOT apply when court finds no common feature linking terms surrounding the one in question
○ E.g., *****
● Noscitur a sociis (“a thing is known by its companions”)
○ Lists all occupy roughly same space, level of specificity
○ Aims to ensure a term interpreted consistently with surrounding words so as not to unduly expand statutes
beyond their reasonable reach
○ Will NOT apply when court finds no common feature linking terms surrounding the one in question
○ E.g., court reads, promotes, prevents
● Expressio unius est exclusio alterius (“the mention of one thing is the exclusion of another”)
○ Typically when Congress lists exceptions
○ Apply when they can infer from the inclusion of one term that the omission of another term was intentional
○ Negative inference justified only where terms themselves have a commonality
○ Does NOT apply to every statutory listing or grouping - has force only when items expressed are members of an
“associated group or series”, justifying inference that items not mentioned were excluded by deliberate choice,
not inadvertence
○ E.g., Holy Trinity list
● Other linguistic canons
○ Punctuation
■ Rarely sufficient by itself
■ A purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs risk of
distorting a statute’s true meaning
■ Arguments based on punctuation are less strong than those based on other tools or canons
■ Parentheticals - courts have held language inside a parenthetical is entitled to less weight than language
outside a parenthetical - best read as illustrative list
○ Last antecedent rule
■ A limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it
immediately follows
○ Conjunctive v. disjunctive
■ Terms connected by a disjunctive should be given separate meanings, unless the context dictates
otherwise
○ May v. shall
■ “May” connotes permissive or discretionary action, whereas shall connotes a mandatory one
■ “shall” can convey an element of discretion and can even have the same meaning as “may”
○ The Dictionary Act, 1 U.S.C. §§ 1-8 1871
■ Supplying rules of construction for all legislation
■ Act applies “in determining the meaning of any Act of Congress, unless the context indicates otherwise.”
■ Courts have a fair degree of leeway to determine when another interpretation is appropriate
■ Courts largely free to disregard dictionary act

Whole act canons

● Presumptions / rules about meaning of term in relation to other terms, phrases, or provisions in the same statute
● Comparing text in 1 provision to text of another in the same statute
● The whole act rule
○ Instructs courts to view statutory terms as part of entire legislation in which they were enacted
○ Presumes that Congress views each statute as a whole, thus creating coherence and avoiding redundancy
○ Principles:
■ Identical words - 1) consistent meaning
● Far from absolute
● Readily yields whenever variation in connection in which words are used as reasonably to
warrant a conclusion
● E.g., IRS - court determines meaning of “claim” Congress intended same use as in tax statute
● E.g., Court interpreted age in different parts of Age Discrimination Act
■ 2) Avoiding redundancy and surplusage
● Statute ought upon the whole to be construed that, if it can be prevented, no clause, sentence,
or word shall be superfluous, void, or insignificant

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2. Statutory Interpretation by Courts

● Inconsistent with noscitur a sociis, ejusdem generis

● TItles and provisions
○ 3) Titles
■ Title alone not controlling
■ E.g., Holy Trinity title of statute invoked to show did not apply to contracts for transportation of
clergymen (title included “labor”)
○ 4) Provisos
■ Clauses that state exceptions to or limitations on the application of a statute

Whole code canons

● Make sense of a word in light of other statutes
● Reconcile text of one statute with text of another statute/statutes
● In pari materia
○ Statutes addressing same subject matter generally should be read “as if they were one law”
○ Entitled to great weight in resolving any ambiguities and doubts
○ Reflection of practical experience in interpretation of statute: a legislative body generally uses a particular word
with a consistent meaning n a given context
● Inferences across statutes
○ Interpret statutes together, even when statutes are insufficiently related
○ Repetition - when Cong uses the same language in 2 statutes having similar purposes, particularly when one is
enacted shortly after the other, appropriate to presume that COngress intended that text to have the same
meaning in both statutes
○ Repetition of the same language in a new statute indicates the intent also to incorporate its judicial interpretations
● Repeals by implication
○ Not favored and will not be presumed unless Congress made clear and manifest intention to repeal
○ Views statutes as confined to their own domains, particularly when later-enacted statutes are more general than
earlier-enacted statutes

E.g., Applying Textual Canons to Statutes

● E.g., “Reserved for Green Vehicles”
●.1. Start with text
●.2. Identify possible sources of meaning (ordinary, technical)
●.3. How do we choose between 2 ordinary meanings? (e.g., Muscarello - “carries”)
●.4. Start narrow, then go broad
●.5. E.g., in Muscarello, Brier cited: great novels, newspapers, SCOTUS opinion, pop-culture, etc
●.6. E.g., in Muscarello, Ginsburg used similar tack for counterexamples
●.7. Look at broader ordinance; guidance to parking enforcement?
●.8. Absurd results?
● E.g., “No vehicles in the park”
●.1. Sgtart with text
●.2. Does ordinary meaning govern
●.2.1. No, because defined term (§ 3)
●.3. Noscitur a soccis? Is vehicle general term defined by list of things that qualifies: no
●.4. Ejusdem generis? Any mechanism including (specific list) therefore no, because “including” doesn’t imply
exhaustive list
●.5. Expresio uniis - doesn’t apply when not exhaustive list
●.6. Whole act canon
● E.g., ESA 16 USC (written by Congress) v. 50 CFS (written by Dept of Interior)
●.1. Situation: logging and clearing forest - harm direct or indirect?
●.1. Does harm have multiple ordinary meanings?
●.2. How do we resolve ambiguity?
●.2.1. Start narrow, move broad
●.3. Is harm known by its associates?
●.4. Not ejusdem generis b/c no general terms
●.5. Not expresio uniis b/c unclear that we can make inference of deliberate choice
●.6. Why would congress throw harm in if congress just was being redundant including harm as opposed to including
broad terms?

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●.7. 1536 talks about habitat modification

●.7.1. 1536 & 1538 directed at different audiences
●.7.2. Exclusion of term in 1532 & 1538 suggests intentional omission (implying only Fed agencies know how to
protect habitats
●.8. Whole code rule (Babbit)
●.8.1. Scalia’s dissent and points to migratory bird treaty act
●.9. Rule against absurdity
●.10. What’s missing in analysis thus far? Statute’s purpose
●.11. ****** slide 12

2C3 Text Based Tools: Substantive canons of construction

(292-93, 304-27)
● Rules about how the law should look
● Protect or reflect substantive rules
● Not policy neutral
● Can be overcome
● What’s required to overcome varies case-to-case depending on how canons used

End - Canon of constitutional avoidance / unconstitutionality canon

● Court avoiding constitutional question - not deciding whether or not constitutional
● Tie-breaker - In the event of (1) statutory ambiguity and (2) grievous constitutional question, court should adopt
interpretation that will spare it from having to resolve question about the constitutionality of the statute
● Marbury v. Madison - doctrine requires court to avoid interpretations of statutes that render them unconstitutional or
raise serious doubts about their constitutionality
● 1) traditional formulation
○ Categorical - every reasonable construction must be resorted to, in order to save a statute from unconstitutionality
○ Premised on notion that Congress intends to enact statutes that are constitutional, and courts accordingly ought to
pick that interpretation
● 2) modern formulation
○ Statute must be construed, if possible, to avoid not only conclusion that it is unconstitutional but also grave doubts
that it is unconstitutional
○ Avoid interpretations that raise questions as to constitutionality
● Only available when (1) statutory provision is ambiguous, and (2) grievous doubt about its constitutionality
○ If court were to find language clear, court would have to pass on reading constitutionality of the statute*
● Based on ideas of judicial minimalism and restraint
● E.g., Zadvydas v Davis (2001)

○ what period of time an detention be?

○ A: removal period - statute doesn’t tell us.
○ When no bright lines, lawyer should provide options
○ Infinite detention = violation of 5th amendment
○ Court signals it might be constitutional question
○ Court is looking for clear indication that Congress intended statute to be read literally
● E.g., Almendaverez v Torres

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○ Issues: is it a separate penalty or separate crime?

■ If separate crime, have to indict
■ If penalty enhancement, don’t have to include in indictment
○ Text:
■ Underlined phrases tether together - good indication that this is single crime (cross-references bind two
provisions together)
■ Title - “penalties” - separate penalties, not separate offense
■ Unfairness of separate offenses (similar to Green v Bock Laundry)
○ No grievous constitutional question - no need to invoke canon *look at dissent*
● Distinction - Zadvydas and Almendaverez
○ Is court waffling? Ambiguity in both statutes
○ But constitutional question more serious and in doubt in Dadvydas
○ More serious constitutional question, less ambuguity required (sliding scale)

Middle - Federalism clear statement rule

● Prohibits court from construing a statute to interfere with state sovereignty absent express language indicating that
Congress intended that result
● States retain substantial sovereign powers under constitution, powers with which Congress does not readily interfere
● Absence of express language opens up opportunity for application
● Court will not adopt particular interpretation unless statute plainly requires that result
● Shift interpretive responsibility from courts to Congress
○ Other e.g., courts should defer to agencies that have issued reasonable interpretations of ambiguities in the
statutes that those agencies are charged with administering
● E.g., Gregory v. Ashcroft

○ Super strong clear statement rule

○ Issue: Age discrimination Act exception (ADEA)
■ Are state judges exempt from this provision?
■ Are state judges appointee on policy-making level
○ Start with text
■ 1) O’Connor doesn’t start with text and starts with federalism and dual sovereignty
● Invokes very strong clear statement rule: Congress can’t override without clear statement of
intention
■ Noscitur a soccis
○ Dissent (White)
■ Can resolve in textual way
■ Can resolve less aggressively

Beginning - Presumptions
Rule of lenity

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● Criminal statutes
● Tie-breaker - provides reason to pick interpretation that is more favorable toward criminal Ds
● Rooted in concern of law for individual rights & belief that fair notice should be accorded as to what conduct is criminal and
punishable by deprivation of liberty or property
● Touchstone is statutory ambiguity (Ginsburg)
● Justices can disagree on whether a statutory provision is sufficiently ambiguous to warrant application

Presumption against presumption

● Functions similarly to clear statement rules, although somewhat weaker.
● Default as to how statute should be construed (in favor of state sovereignty) that can be overcome based on clear language
or other strong evidence that Congress intended otherwise

Presumption against retroactivity

● Functions similarly to clear statement rules, although somewhat weaker. Default as to how statute should be construed (in
favor of not giving retroactive effect to statutes burdening private rights) that can be overcome based on clear language or
other strong evidence that Congress intended otherwise

Presumption against extraterritorial application

● Functions similarly to clear statement rules, although somewhat weaker. Default as to how statute should be construed (in
favor of applying statute only within U.S. territorial jurisdiction) that can be overcome based on clear language or other
strong evidence that Congress intended otherwise

Intent and purpose-based tools: Legislative History

● Forms of Legislative History (341)
● Committee reports
○ Highest position in hierarchy
○ Those who are best informed about bill
○ Fairly plain language
○ Readily accessible and relatively easy to understand; not always reliable indications of leg intent
○ Not subject to vote
○ Cannot be amended, therefore do not reflect disagreements
○ “Doctored” in anticipation of use by courts
● Author and sponsor statements
○ Reliable indication of leg intent b/c prepped by individual knowledgeable about bill & relatively high position
○ May reflect strategic attempt to convey unique message
● Member statements
○ Remarks of other members of congress fall below author
● Hearing records
○ Oral testimony, written submission of reports, comments and questions from members

2D. Intent- and purpose-based tools - Legislative history (341-73)

Hierarchy
● Start with text
● Intrinsic sources (textual canons, substantive canons)
● Extrinsic sources (legislative history) - there is a hierarchy of order among legislative history
○ Committee reports
○ Statements of sponsors, drafters
○ Statements during deliberation (hearings, floor debates, rejected proposals)
○ Post-enactment history
○ Legislative inaction

How to find legislative history:

● Compiled?
○ Karen P. Johnson, Sources of Compiled Legislative Histories (2nd floor, KF42.2)
○ Westlaw > U.S. Federal Materials > Legislative History
○ LEXIS > Legislation & Politics > U.S. Congress > Legislative Histories

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○ Lexis/Nexis Congressional
● A la carte?
○ Lexis/Westlaw
○ Thomas.loc.gov - website for LOC
○ www.access.gpo.gov - PDFs
○ House and Senate Committee pages
○ HeinOnline - original PDF docs
● Every step in legislative process generates some documentation:
○ Bills
○ Amendments
○ Committee reports
■ Most comprehensive, reliable
■ Not 1 person view, rather committee views
■ Sometimes congressmen read committee reports instead of actual text
■ Most cited by courts in their opinions
○ Committee hearings
○ Committee prints
■ Include studies and background research materials considered, relied upon
○ Floor debates
■ Lots only written (accompanying floor debates) - not rebutted, inserted into congressional record
■ Not always probative
○ Presidential signing statements
■ Signals how president reads the law
■ Also executive branch (executes) houses a lot fo agencies
■ Has last word (sometimes taken advantage of?) - GWB wrote lengthy statements to try to change
meaning of statutes
○ GAO studies, etc.
■ Make assumptions about what Congress means (fiscal reviews, etc)
● Texas legislative history
● Locate bill number using Historical Notes at end of statute
● Locate Bill File
○ www.capitol.state.tx.us
○ See SMU Library Guide for bills pre-1991
● Bill file contains:
○ Versions of bills
○ Committee Reports
○ Amendments
○ Fiscal notes
● Hearings and debates
○ Tape recordings (1973-)
○ Journals (1846-1995)

Difference between statute and administrative regulation:

Moore v Harris (4th Cir May 1980)

● Employee often refers to legal relationship between employer and employee (Relationship doesn’t exist if self-employed
● States weren’t compensating or weren’t doing so well. Therefore, Cong stepped in with statute
● Reason for presumptions: Trying to make it easier for miners to establish causation to get benefits
● Interpretation:
○ Text
○ Amendments (‘78)

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■ what inferences can you make about statute by examining amendment?

■ Why would Congress amend language if language under act already covered miners?
○ Whole act rule (not cited)
■ How act uses “worked in” v “employed in”
■ Assumption: when congress uses different words/phrases, they do so to convey different meanings
■ Court overcomes: broad purpose and legislative history
○ Broad purpose
○ Legislative history
■ Conference committee report - limitations - conference committees limited to amending portions of bill
that differ
■ Floor debates
■ Committee reports
■ Statements by sponsors, drafters

Montana Wilderness I (9th Cir 1981)

● “Checkerboard case”
○ Alternating parcels of land owned by federal government and pacific RR
○ 116 years later - Congress passed Alaska Lands Act
● 1323b parallel language to 1323a
○ Differences:
■ Different secretaries Agriculture (A) vs Interior (B)
■ National forest system (A) vs Public Lands (B)
● Interpretation:
○ Whole Act
■ Parallel construction
■ Different terms, presume different meanings
■ Every other part clearly applies to Alaska only
■ 1323(a) would be only section
● That applies outside of Alaska
● With national implications
○ US code
■ Nothing
○ Legislative history - What’s reliable and what’s not?
■ Options:
● Senator Mulcher’s floor statement
○ Discounts because made statement 8 days after bill passed (inserted into congressional
record late)
● Senate energy committee report
○ “Dog did not bark canon” - if congress trying to accomplish something major (with
national implications), certainly you would hear something about it in legislative history
● Rep Udall
○ Notorious for speaking out of both sides of his mouth - Story about strip-mining floor
debate - gives conflicting statements
○ Tried to amend act to clarify 1323a refers to AK only
○ Inserts into legislative history after amendments unsuccessful
● Rep Weaver and Sieberling
○ Correspondence (including assumption that 1323a applies nationally) with justice
department
■ Who should be relied upon?
● Sponsors/drafters of bill because more familiar / better understand effects, goals, intent of bill
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2. Statutory Interpretation by Courts

■ What incentives while trying to get bill passed?

● Incentive to be truthful because otherwise colleagues will stop listening.
● Opponents might not have good incentives while opposing
○ Is court trying to determine outcome?

Montana Wilderness II (9th Cir Fall 1981)

● Can courts interpret statutes differently in light of changed circumstances?

● Legislative history totem pole 2 questions
○ When should courts use post-enactment legislative history to interpret statute Congress passed previously?
○ What, if anything, can we infer from legislative inaction?
● Again considers texts
○ Looks at entire act
○ Examine code
■ Find in another statute
○ Back to entire Act (raises dog did not bark)
■ Would congress use elliptical, ambiguous language to affect policy that affects national forest lands
nationwide and not talk about it?
● How does judge reach opposite conclusion?
○ Decisive: House conf committee that interpreted words nationwide
■ Re: CO Wilderness act ( → 1323a already applies nationwide)
○ Why put any weight into what Cong thinks about bill after the fact?
■ Had time to consider
■ Did consider
■ Dealing with same issue
■ Explained to both Houses understanding of Conf Comm would be reflected
■ Citing Udall’s participation on committee shows he didn’t really oppose it last time
■ Melcher, Siebarli, Udall - all on CO committee
● Takeaways:
○ ** Example of reliability of post-enactment legislative history **
■ WVU Hospital v Casey - court has to interpret statute re: recovering atty fees
○ In general different sources more reliable than others
■ BUT be sensitive to fact-specific nature of inquiry
○ Should Cong failure to pass a bill have any implications?
■ Cong inaction / silence may have many different meanings
■ When can we threaten silence / inaction as agreement?

Bob Jones Univ v US

1983

● Big questions:
○ Do failed legislative proposals have any significance?
○ How much leeway do courts have in updating their readings of statutes?
● Dealing with 501c3
○ Exclusion of organizations that racially segregate
● ** Germane case for courts considering legislative inaction ** What lessons can we derive?
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2. Statutory Interpretation by Courts

○ Legislative inaction could have several explanations: doesn’t always have dispositive meaning
○ Court allowing (upholding) agency’s interpretation (even that changes)
■ Depends on how old statute is
■ Sometimes agencies are more empowered
■ Depends on how much world has changed (e.g., Bob Jones racial discrimination no longer being
ignored by federal court → Burger’s opinion cites instances throughout Fed govt that prohibit /
disapprove of racial discrimination)
● ID tools Burger majority uses and order in which they are invoked

Burger

Plain language

Canons

Whole Act Rule - including § 70 in pare materia

Broad purpose: to serve some public good

History of exemptions: stretches back to Eng common law

Executive policies - cites POs, etc that frown on discrimination, particularly in education

Legislative history?
- Congress didn’t go back to correct 501c3 (if they had objected, they could’ve amended)
- Ratified by implication
- Why especially meaningful?
- Congress acutely aware of IRS ruling
- 12 separate bills introduced that would’ve overruled and none made it out of committee
- Congress held hearing on issue 1 month after, tinkered and amended 501c3 in other ways a few
times, but not to overrule IRS. Therefore, strong inference Congress agreed.
- Congress enacted 501i
- Inference - if Congressional silence approval after 1970, must also be approval pre-1970
- Can still distinguish pre-1970 silence from post-1970 silence

Rehnquist

New section 501(i)

- Turns against majority
- Congress knows exactly how to address problem of racial discrimination regarding tax exemptions, so why
didn’t they? Therefore, Congress must approve of status quo (for 501c3)

Agency authority?
- Jurisdictional competence and separation of powers
- Does this issue need to be taken up by Congress instead of allowing IRS (Exec branch) to amend?

Plain language - Doesn’t require educational groups to be charities

Whole Act Rule - 170

Legislative history - particularly Burger’s reliance on Congressional inaction

Definitions:
● Crimen falsi
● certiorari

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