comment on Statutes' Domains

Comment on Statutes' Domains

Fang Chao, Zhang Siyue

Comment on Statutes' Domains

Fang Chao, Zhang Siyue

To begin with, we should know some background of the author, Mr. Easterbrookthat he is noted for his use of economic analysis of law, his legalist approach to judicial interpretation, for his clear writing style, and for being one of the most prolific judges of his generation.

Obviously, in this article, the characteristic of economic analysis and legalist approach can be seen, but the clear writing style is not inconsistent. But maybe like the sentences of the last paragraph “This essay does not begin to exhaust the considerations” and “The suggestion is tentative, and the arguments are far from complete”, so some suggestions in it is not clear.

Next, let?s review the article in a brief.

In part I, the author told us the background why he had the considerations is that judges have substantial leeway in construction and that their inferences almost always conflict, , and the considerations are on the choice between construction and a declaration of inapplicability.

In part II, he addressed some of the considerations pertinent to deciding whether the statute indeed supplies an answer or whether it is to be put down and disregarded.

In part III, he used examples further and further to argue that the decision to construe the statute at all cannot be based on the legislature's actual decision, for if it made an ascertainable decision there is no difficult question of construction on the grounds that there are a hundred ways in which a bill can die even though there is no opposition to it, that despite the information it conveys about the meaning of Congress, it neither adds to nor detracts from the meaning of the legislation actually enacted, and that a court could not treat these widely-supported but never-enacted proposals as law without dishonoring the procedural aspects of the legislative process and without authority.

In part IV, in his thought, a meta-rule of statutory construction was needed that a rule was about when to engage in construction. And he excluded some possible rules because of the need of the balance among statutes and the unsatistfactoriness of any universal rule.

In part V, he raised his suggestion of the meta-rule that unless the statute plainly hands courts the power to create and revise a form of common law, the domain of the statute should be restricted to cases anticipated by its framers and expressly resolved in the legislative process, and that unless the party relying on the statute could establish either express resolution or creation of the common law power of revision, the court would hold the matter in question outside the statute's domain. And he argued why t he “clear statement” principle was unsuitable and added other four considerations to support his suggestion.

In part VI, he had a conclusion and expressed that “the suggestion is tentative, and the arguments are far from complete.”

After the brief review, let?s come to the comment.

Significantly, there are two apparent unclear places: one is the analysis between benefits and cost; the other is why the construction of courts is unsuitable substantively.

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Comment on Statutes' Domains

Fang Chao, Zhang Siyue

It is better to comment part by part, for it?s easy for you to understand it. And in my eyes, maybe to discuss the points thought by me that has questions will take a long time, and thus I would like to choose some apparent points to focus on.

In part I, he didn?t provide any evidence to support that “inferenc es almost always conflict”, and when and how many times “even if the judge knows how Congress would have handled the question presented, the court will do nothing”. The article didn?t only lack sufficient evidences here, but also in other parts behind. These reasons are so important that if the lack of these reasons, his opinion that the courts obey Congress?s intent wouldn?t stand steadily.

In part II, there are some logical problems.

One is a conflict between that in the second paragraph of this part, he said “the terminology is unimportant” and that in the third paragraph, he said “but in my terminology this becomes a deci sion that the statute …applies?only to dogs”. If the terminology is unimportant, why in his it would create the different understanding with others? If the terminology is important, why didn?t he elaborate them clearly? It made readers confused.

The second one is that he thought it was difficult to maintain a line of the distinction between application and interpretation. But I think it?s also hard to maintain the point in that “at some point the cost will begin to exceed the benefits” which was said by the author. The cost and benefits on the governmental or judicialactions are also defined hard. It?s hard to persuade us to believe that the ideas of the cost and benefits when it is difficult to maintain the point in that “at some point the cost will begin to exceed the benefits” as well as to maintain a line of the distinction between application and interpretation.

In part III, he used many examples of hypothesis to express his idea. Despite the way of emphasizing lighter through heavier, but if the hypothesis is too impossible and unlikely to happen, they could not work. Maybe such legislative progress in the fourth, fifth, and sixth paragraph of this part had happened ever, but it didn?t mean that they can represent the fact and the truth. Thus these hypothesis maybe are not good reasons to support his idea.

And it was seen that the author had a preference to the formal progress rather than the substantive effect. If one legislative progress had severely dangerous flaw obeying the original purpose of the act, but we still ignore it and just focus on the statutes, then what would it happen? Could we really ignore the real effect of the action?

Surely, the procedural aspects of the legislative process are very important, but when considering the original intent in order to avoid some negative effect is also important.

In the same time, he emphasized that “an abortive attempt to enact a bill has no effect”, that “if the support cannot be transmuted into an enrolled bill, nothing happens. The world goes on as before”, and that “the court has no authority to decide in favor of the party invoking the blank-containing statute”. However he had n?t indicated why the courts had no authority now but why the courts could invoke and use them before. How the transfer happens? We cannot see reasons in the part.

In part IV, he referred the cost and benefits many times, but as what I said above, it?s hard to identify how to define them. Which act costs much? Which act benefits much? It is the basis of his analysis, but he had never defined it.

The ambiguity of them is much than it of the original meaning of legislature. Besides, who hands the authority to the author to compare the cost and benefits of actions?

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Comment on Statutes' Domains

Fang Chao, Zhang Siyue

One may object that he just did an academic analysis, and it did not need the authority. However, no specific number and data was seen in the part, and what can be seen were loads of many “cost” and many “benefits”.

In many his reasons of excluding other rules, it can be seen that “cost exceed the benefits”. But he hadn?t clearly express or indicate why it produced exceeding and whether it existed some real cases of examples which had the result.

In the first paragraph of the part, he said that “the decision to engage in construction must depend on something other than the substantive answer that a constructive exercise would supply”, so it?s easy to know that he pursue the f ormal reason than the substantive reason, but in his economic analysis, the cost and benefits are not formal reasons, but substantive reasons.

In an additional thinking, if the analysis the cost and benefits is reasonable, when we use “the structure, purpose, and legislative history of the original statute” to get a result that the benefits exceed the cost, which is only a hypothesis that is like the author?s hypothesis, what should we balance and choose?

In part V, the special places which are worth attention are the four considerations to support the author?s suggestion of meta-rule.

The first is original meaning. I do agree with the author?s thinking that because legislatures comprise many members, that each member may or may not have a design and that the body as a whole, however, has only outcomes. Surely, the private intent exists.

But I do not agree with that they do not have “intents”' or “designs”hidden yet discoverable and that it is not only impossible to reason from one statute to another but also impossible to reason from one or more sections of a statute to a problem not resolved. For the former, legislature may have every inpidual?s own intent, but it as a group which is organized for some certain purpose, surely and logically have intents hidden, and they would have the basic or lowest purpose even in terms of the different interest. For the latter, statutes have a structure which arranges a lot of statutes, and even if the voting of statutes is one at a time, but it works according to some certain logic. What I have to point out is his description of the legislative method in overstatement.

As for the second and the third, I agree with him.

However,I have to show my disagreement to the fourth consideration which is on the judicial abilities. I think the author had again overstatement here. If the truth was really like the author?s description, how could they tackle with the common law case? In the treatment of common law cases, without statutory, but with numerous precedents, judges still can handle them well, so why don?t we believe the judges can be “with mastery of history, command of psychology, and sensitivity to nuance to pine how deceased legislators would have answered unasked questions.”

In the common law cases, it needs more sensitivity to nuance, and maybe someone would say the kind of nuance is different, but the sensitivity to nuance is a capability. Judges can use the capability both in common law and statutory law.

And the author lack data to indicate at fact how many judges are unable to achieve the standard which he described. And he lack the detail how much social knowledge judges should master, so he might say anyone unable it if the lack of detail command.

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Comment on Statutes' Domains

Fang Chao, Zhang Siyue

In part VI, the conclusion was really agreed by me, especially what have been referred above is that the suggestion is tentative, and the arguments are far from complete.

Perhaps because of the incompletion, I can comment so much on the article.

QUESTIONS:

1. What do you think about that inferences of courts almost always conflict, and the

enacting Congress is unlikely to come back to life and “prove”' the court's construction wrong?

Is that inferences of courts almost always conflict the truth?

If it is true, what should the legislature do? What should the administrative do?

2. If one legislative progress had severely dangerous flaw obeying the original purpose

of the act, but we still ignore it and just focus on the statutes, then what would it happen? Could we really ignore the real effect of the action?

3. What do you think about that a failed attempt to enact a bill has no effect and in this

situation cannot courts really use legislative history either in a substantive intent or in

a formal intent?

4. Did the benefits of insisting a formal way exceed the benefits of insisting a substantial

way?

5. Did you think that it?s difficult to find the legislative intent even if that legislature

comprises many members and that each member may or may not have a design?

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