class 11

In general, judges’ role in federal and state courts

• Apply legislative law and interpret it

  • John Dickinson – “the Judges must interpret the Laws they ought not to be legislators.”

  • Courts must apply a statute if it addresses the legal issue before them. If there is a conflict between a statute and a judge-made (common law) rule – the statute prevails.

• However, courts can still make law o“Fill in the gap” between statutes or try to harmonize multiple conflicting statutes.

  • Develop (make) the law in areas that are not covered by statutes (through the case-by-case method

source of law

What is the controlling law in question in this particular case?

Hierarchy of importance:

1. Constitution

2. Statutes

3. Judicial opinions

Hierarchy of importance:

1. Constitution

2. Statutes

3. Judicial opinions

legislative supremacy

When courts apply – or review statutes for their constitutionality – they are subordinate to legislatures’ lawmaking authority.

sometimes leg use statutory framework which are purposefully vague and ambiguous so

judges can interpret/change it (working together)

Presumption of legislative competence - As long as legislatures act within their constitutional authority, courts will assume:

• Statutes (and regulations) are valid unless it can be proven otherwise.

• The legislature acted intentionally – they chose the words they wanted in the stature

like rules in general, every statue has a

background justification or rationale that the statue is meant to serve

however, the statue’s text IS

the law. its actual text is the starting point for all interpretation

(formal textualism) vs purposive

statue = law → then

what the meaning is/interplay

Statutory Interpretation: language

1. Language of the statue provides a sensible, plausible answer.

2. Language of the statue is linguistically indeterminant.

a. Language is vague and invites numerous possible

interpretations.

b. Language is clear for most applications but becomes vague in certain applications (“open texture”).

3. Language of the statute is clear and gives a clear answer, but the result is absurd

1. Language of the statue provides a sensible, plausible answer: - prison litigation reform act

42 U.S.C. § 1997e - Suits by prisoners Prison Litigation Reform Act (PLRA), 1996

§ 1997e(a) APPLICABILITY OF ADMINISTRATIVE REMEDIES

No action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by

a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted

• this act restricts ability for incarcerated people to access court

• the application of admin procedures: exhausted all remedies? - any admin remedy within complaint within or abour prison conditions, you have to use all remedies BEFORE bringing to fed court → if you dont do this, your case is discarded

• this has a crystal clear answer!

2. Language of the statue is linguistically indeterminant.

a. Language is vague and invites numerous possible interpretations:

U.S. Constitution, Amendment VIII (1791):

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Trop v. Dulles, 356 U.S. 86, 101 (1958):

“The [Eight] Amendment must draw its meaning from the that mark the progress of a maturing society.”

Prohibition against the criminalization of certain forms of conduct

or states of being, or personal conditions:

Robinson v. California, 370 U.S. 660 (1962) (Should addiction be criminalized?)

During a traffic stop, a police officer notices injection marks (“tracks”) on the arms of the driver, Robinson. Officer claims that Robinson admitted to “sometimes” using heroin. Robinson later denies this. He was arrested and prosecuted for violating California Health and Safety Code. He was NOT caught selling or possessing heroin, nor was there any evidence that he had recently used heroin (no DUI).

California Health and Safety Code § 11721:

No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics.

• excessive bail; cruel and unusual punishment

  • vague; deliberate written as unclear

  • evolution of punishment overtime (not considered when constitution was drafted)

  • new criminal laws and punishments

• Late 19th century – More questions arose about the meaning of this phrase. There were a lot of new criminal laws and punishments that were not common at the time of the Constitution’s drafting.

• the use oof the 8th amendment must draw its meaning from the evolving standards of decency that mark progression of maturing society is still vague

• U.S. Supreme Court found the law violated the Eight Amendment’s prohibition of cruel and unusual punishment for criminalizing, in their words, a “disease.”

• constitution applies to the states as well as fed govt

  • cali health and safety code: cant be narcotics / be addicted excepting when administered by licensed personnel (status crime)

• consti said this violates the 8th amendment

  • vagueness; open questions

  • specific circumstances to figure this out (evolving decency, etc)

  • if crafted in vague way you dont have to change it very often (fill in gaps; open ended)

  • purposivism, originalism, formalism, textualism

2. Language of the statue is linguistically indeterminant

b. Language is clear for most applications but becomes vague in

certain applications (“open texture”).

Truck Trailer Manufacturers Association, Inc. v. Environmental

Protection Agency, No. 16-1430 (D.C. Cir. 2021)

• Regulatory rule for tractor trailers created by Environmental

Protection Agency (EPA) and the National Highway Traffic Safety

Administration (NHTSA).

• Required manufacturers to adopt fuel-saving technologies, such

as side skirts and automatic tire pressure systems.

• Rule was created under a statute that enable the EPA and NHTSA

to regulate “motor vehicles”.

• Does “motor vehicle” include truck trailers?

• Motor vehicle – “any self-propelled vehicle designed for transporting persons or property on a street or highway.”

• Majority of court agreed with the Truck Trailer Manufacturers Association – trailers are not “motor vehicles”.

• Dissenting judge argued that clear purpose of the law – to regulate greenhouse gas emissions – meant that trailers should be considered “motor vehicles”.

3. Language of the statute is clear and gives a clear answer, but the

result is absurd.

United States v. Ashton, 2 Sumn. 13 (1834)

Aug. 23, 1834, the 29-year-old ship Merrimack set sail from Boston

Massachusetts for Rio de Janeiro under Capt. Eldridge’ s command.

Eldridge concealed Merrimack’s leaky condition from a new crew, but

they discovered it, asked to return to port for repairs. Eldridge refused.

During a storm, the crew pumped water all night and demanded to

return to port. Eldridge refused again. Crew refused further work

unless they returned. Eldridge conceded and returned to Boston.

In Boston, Capt. Elridge and the owners of the ship had the crew

charged with revolt under the Crimes Act of 1790 § 12:

“... if any seaman or other person shall ... endeavor to make a revolt

in such a ship; (a) such person or persons so offending, and being

thereof convicted, shall be imprisoned not exceeding three years,

and fined not exceeding one thousand dollars.”

Associate Justice Joseph Story:

“Seamen, when they contract for a voyage, do not contract to

hazard their lives against all perils which the master may choose

they shall encounter. They contract only to do their duty and meet

the ordinary perils, and to obey reasonable orders. The relation

between master and seamen is created by the contract; but that

relation, when created, is governed by the general principles of law.

Unlimited submission does not belong to that relation.”

Public Citizen v. Department of Justice, 491 U.S. 440 (1989)

Associate Justice Anthony Kennedy (concurrence):

“Where the plain language of the statute would lead to ‘patently

absurd consequences,’ ... that ‘Congress could not possibly have

intended,’ ... we need not apply the language in such a fashion. When

used in a proper manner, this narrow exception to our normal rule of

statutory construction does not intrude upon the lawmaking powers

of Congress, but rather demonstrates a respect for the coequal

Legislative Branch, which we assume would not act in an absurd

way.” [470]

• old ship traveling from boston to rio de janeiro

• capt concealed bad damage to ship

• crew realized what was going on → asked capt to turn around to make repairs

• storm → ship taking water → crew refused to keep working → cap turned around

• crimes act of 1790 s12: ship revolt → imprisonment/fine

  • capt brough this against crew

  • NOT WHAT STATUE MEANT: associate justice joseph says this isnt possibly what the statue meant

    • seaman dont contract to hazard against unreasonable perils

    • unlimited submission doesnt belong to that relation

    • revolt to save lives so its diff

Statutes have purposes

justifications, rationales – that inform that actual text of the law.

Often, this purpose is clearly stated in the law. Or,

it can be reasonably inferred from text.

Karl Llewellyn – Statutes often have a

“singing reason” – a clearly stated purpose in the text, usually in a preamble.

signing reason example

Immigration and Refugee Protection Act S.C. 2001, c. 27

• interpretation guide

• objectives and application

appellate opinions - parties to litigation

• petitioner/appellant

• respondent/appellee

• amicus curiae (“friend of the court”)

Petitioner/Appellant

Party seeking a review of a lower court decision by an appellate court.

Respondent/Appellee

Party opposing the review of a lower court decision by an appellate court. They want the lower court decision to stand as it is.

Amicus curiae (“friend of the court”)

Other parties interested in the outcome of the appellate process over a particular issue. They file “amicus briefs” with the court concerning their view of what the law should be on this issue

Appellate Opinions – Types

• unanimous opinion

• majority opinion

• concurring opinion (“concurrence”)

• dissenting opinion (“dissent”)

• plurality decision

• plurality opinion

• controlling opinion

Unanimous opinion

All the judges hearing the case agree on the result and legal reasoning. Sometimes author listed as “per curium” (“by the court”). Some jurisdictions with use “Justice [NAME], for the court”

Majority opinion

Supported by a majority of the judges hearing the case

Concurring opinion (“concurrence”)

One (or more) of the judges supports the result reached by the majority in a case by not for reasons stated in the majority opinion.

Dissenting opinion (“dissent”)

One (or more) of the judges disagrees with result and the reasoning stated in the majority (or plurality) opinion

Plurality decision

No opinion received the support of a majority of the judges hearing the case

• no clear majority

Plurality opinion

The opinion in a plurality decision, which received the most support among the judges hearing the case but is still less than half the number of judges.

• more judges supporting a decision than other but doesn’t constitute a decision/majority

plurality decision and opinion are weak for

precedent (usually relitigated)

What is the holding of case in a plurality decision?

What is the precedent that future courts must apply?

• holding: controlling opinion (narrowest grounds - who resolved case w least amount of legal reasoning bc it recognized that court is fragmented so we want the least constructive + power to be put into place)

• plurality decision and opinion are weak for precedent (usually relitigated)

Controlling opinion

• Lower courts must examine the plurality and concurring opinions and determine which one decided the case on the narrowest of grounds.

• Sometimes this will be the reason in the concurring opinion, not the plurality opinion.

The Marks Rule: Marks v. United States, 430 U.S. 188 (1977)

Associate Justice Lewis F. Powell Jr.:

“When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices,

the holding of the Court may be viewed as that position taken by

those Members who concurred in the judgments on the

narrowest grounds.”

The Marks Rule: The “narrowest grounds” – Who resolved the case on the most limited legal issue with the least amount of necessary legal reasoning?

• Avoids broad interpretations that could create more uncertainty in the law

• Encourages judicial restraint – don’t make big changes.

• Minimizes the effect of a precedent.

Functions of Concurring and Dissenting Opinions

1. Attempt to persuade the majority of their view of the case/law.

2. Often improves the quality of the majority opinion by pointing out the majority’s mistakes.

3. Can force the majority to acknowledge and address unfavorable facts in the case for their reasoning.

4. Signals to the losing party that their arguments were heard, understood, and seriously considered.

5. Provide future courts with legal reasoning to adopt in future cases