Agenda for 2 nd Class

1. Agenda for 2nd Class • Misc. • Nameplates out • Use Sharpie • Extra cardstock at front • Handouts • Slides • Pleading Handout • If you have extra handouts or Sharpies, pass them on or give them back to me • Model Answer • On webpage, thru HoGo.com • Audio Recording • On Blackboard • Smith v US (continued) • Methods of Statutory Interpretation • Warden Grim

2. Assignment for Next Class • ## 9 -10 (Weber) (pp. 35-49) • Questions to think about • Any questions from today’s reading that we don’t finish • Notes and Questions, pp. 46ff, ## 1-7 • WG1. Q1, Q5 • WG2. Q2 • WG3. Q3, Q6 • WG4. Q4, Q7

3. Review of Last Class • Both majority and dissent is Smith rely primarily on close interpretation of statutory text • Both are textualist • Shows influence of textualism on court • But reach different result • Shows that textualism does not necessarily give more definite results than other methods of interpretation • Textualist methods • Dictionaries • Usual meaning • Meaning in other parts of statute • Rules of statutory interpretation: “rule of lenity”

4. Questions • 6b) Suppose that police officer Jones brandishes his service revolver while arresting Mr. Smith. Prosecutors seek a five-year sentence enhancement for Officer Jones, who literally “used a firearm during and in relation to a drug trafficking offense.” • 7) What is the purpose of 18 U.S.C. § 924(c)(1)?  Which interpretation of that provision is most in accord with its purpose?  Does either the majority or dissenting opinion refer to the statute's purpose?

5. Questions • 8) Do the opinions make any reference to evidence of what Congress intended in passing 18 U.S.C. §924(c)(1)? • 9) Suppose, during the formal debate preceding passage of 18 U.S.C. §924(c)(1), a Senator said the following: “I think this is a wonderful statute.  We need to make sure that those who use guns while committing drug crimes serve long prison sentences so they don’t cause further harm to the community.  Of course, the statute should only apply where the offender discharged or threatened to discharge the gun.  Other situations don’t really count as ‘using’ a gun.”  Should the Senator’s statement influence judicial interpretation?  • Would it matter if the number of Senators making similar statements were 2, 10, 60 or 80?  • Would it matter if the Senator making the statement was the chair of the committee which drafted the legislation?  • Would it matter if the vote on the statute was 51-49, and the Senator who made the statement voted for the statute, but would have voted against it if he thought judges would interpret the statute broadly?

6. Questions • 10) For a brief period after the French Revolution, French judges were forbidden to “interpret” statutes. If doubt about the meaning of a statute arose during a case, judges were supposed to petition the legislature to interpret the statute and then apply the legislature’s interpretation to the case. The procedure was known as référé législatif. Do you think that’s a good procedure? Should we adopt it in the United States? Can you guess why it was abandoned in France? • 11) The United States has among the harshest drug laws in the world and among the highest prison populations.  Should those facts influence judges in interpreting 18 U.S.C. §924(c)(1)? 6

7. Methods of Statutory Interpretation I • Textualism – Courts should look only at text of statute • Should not look at legislative history • May use “canons of statutory construction,” • rule of lenity; interpret statutes do that they are constitutional • Intentionalism – Courts should try to figure out what the legislature intended • Should look at legislative history, where informative • Purposivism – Courts should try to figure out the purpose of the statute and then interpret ambiguous parts of the statute to further that purposes • Purpose may be inferred from text, legislative history, or other sources • What problem was statute trying to address? • Purposivism is sometimes a variant of intentionalism and textualism • Purposivism is distinct if judges infer purpose from sources other than text or legislative history • Purpose may be public good, even if statute is actually just interest group deal 7

8. Methods of Statutory Interpretation II • Pragmatic interpretation -- Judges should take into account real-world consequences • In practice, use all methods • Good lawyers and judges try to show how all methods point to same conclusion • But sometimes methods point to contradictory conclusions 8

9. Questions on Statutory Interpretation • 5. Which method of statutory interpretation is most consistent with democracy? • 6. Which method of statutory interpretation is most likely to result in interpretations which promote social goals such as justice, efficiency, or fairness? • 7. Which method of statutory interpretation is most likely to constrain judges so that a judge’s ideology or policy preferences have the least effect on judicial decisions? • 8. Which method of statutory interpretation is likely to give citizens and corporations the clearest notice of their obligations? • 9. Which method of statutory interpretation is likely to give legislators the best incentives to draft statutes carefully? • 10. Which method of statutory interpretation would you adopt if you were a judge?

10. Inmates v. Warden Grim and Greylock State Prison