Annual Rosenkranz Debate and Luncheon: Statutory Interpretation
RESOLVED: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress
Saturday, Nov. 14
12:30 p.m. – 2:30 p.m.
- Hon. Guido Calabresi, U.S. Court of Appeals, Second Circuit
- Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
- Moderator: Prof. John F. Manning, Bruce Bromley Professor of Law, Harvard Law School
25 years ago, statutory interpretation was not very important, and received little attention. This topic source of energetic debate. Intentionalists an Purpovists and Textualists
Defend the proposition when interpreting statutes judges should be honest agents of the enacting legislature. Fiathful application of statutes part of our heritage from UK: “judicial power in Article III”
Take care that the laws be “Faithfully” executed. Judges cannot be allowed to depart from faithful execution when the Executive cannot.
The real question: Faithful to the enacting legislature, or to the sitting legislature? Later enacted statues and treat earlier statues as part of common, if not statutory law. (Common law in the age of statues- Calabresi)
1. Our Constitution makes certain procedures essential to law. Majority vote, both houses must enact same text during same session, President must give assent unless override veto. Terms limited to 2, 4,6 years. Judges can’t conceive of legislatures as in perpetual tenure. Only what officials do during their term counts as law. opinion poll is not law, even if poll is 100% sure represents legislature law. West VA v. Casey, litigant argues that if Congress thought of this in 1871, they would have thought of shifting of expert fees. Justices though this exercise illegitimate. Judges are not authorized to engage in this exercise.
Stevens, J. dissent: ” The fact that Congress has consistently provided for the inclusion of expert witness fees in fee-shifting statutes when it considered the matter is a weak reed on which to rest the conclusion that the omission of such a provision represents a deliberate decision to forbid such awards. Only time will tell whether the Court, with its literal reading [n.19] of 1988, has correctly interpreted the will of Congress with respect to the issue it has resolved today.”
THe only will of Congress taht counts is will htat satisifes bicamerlaism and presentment requirements
2. Limiting interpretation to enacting congres. Clauses enacted as package. Arguments that today’s congress would do X, considers that Legislatures would act in that exact way. But if proposal has support, someone always adds amendment. E.g., Stupak Amendment.
Civil Rights of 1991. Justices were sure legislature would overturn the law. Act also changed some decisions that favored plaintiffs, set caps on damage awards. Pro-worker provisions could not have been passed by pro-employer. Any prediction by Judge on one issue would not consider resolution of other issues.
3. Judicial attempts to predict what congress will do is difficult.
Illinois Brick Company v. Illinois, Brennan predicted in dissent Congress would change law, so the Court should allow the law to change without having the Bill go through congress.
“When a Judge says I’m confident today’s congress will propose X, it really means, I favor X”
Guide, and More, after the Jump
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