Part B [DS]



ASSIGNMENT VI: COMMENTS,

COLLECTIVE LIST OF RESPONSES TO VI-A

& BEST STUDENT ANSWERS TO VI-B

A. COMMENTS ON VI-A

Below, you will find a list of responses identified by me and by prior students, organized into rough groupings. The principles that appeared on very few lists generally were the ones that (1) the courts stated less explicitly and (2) I was aware of from other contexts. Many students also included the common principle that the person claiming an exemption has the burden of proving its applicability. I didn’t include it because it really does not focus on how to interpret the statute, but on who must produce evidence to meet the legal standard. Some common problems:

1) Many students included statements about the meaning of the FHA. I was looking for general principles that could be applied to other statutes. To be used interpreting other statutes, your principles need to be stated in a way that does not make reference to the FHA: “When statutes say X, courts should do Y.” As lawyers, you always want to be looking for general statements that you can derive from the specific discussion of cases. Where your formulations are too specific, I write “specific to FHA.”

2) Some students described what the court did, rather than stating a principle. E.g., “The court used legislative history to determine what the statute said.” or “ The court relied on the plain meaning of the statute.” The focus of the exercise was to find rules you could use again, so you need to convert your descriptions into principles: “Courts should use legislative history to clarify ambiguous statutory language” or “Absent strong evidence of contrary legislative intent, courts should apply the plain meaning of the statute.”

3) When phrasing your principles, try to employ language that mainly tracks that of the court. First, it’s easier for you to convince a reader that the court really meant what you say it did. Second, several students rephrased things in ways that were either much broader or narrower than the language of the case. E.g., some students stated, “statutory language should be broadly interpreted.” The cases make the narrower point that courts should interpret remedial statutes broadly to effectuate their purposes. You will lose credibility if you “derive” principles that make sense only when limited by their original 27context.

4) By convention, if you say “the court said…” you only use a capital “C” when referring to the U.S. Supreme Court. Otherwise, use a small “c”. E.g., “In Edmonds, the Court used more canons of construction than the other courts we looked at.”

5) Make clear whenever you cite to a dissenting opinion. You can lose credibility rapidly if you appear to be attributing the dissent’s position to the majority.

B. COLLECTIVE LIST OF PRINCIPLES FROM VA

I group the principles here into categories, not because you were expected to do this, but because you might find it easier to see how they operate as you study them. The list has (roughly) seventeen principles and twenty-six citations, although some of the related principles can be grouped together or divided up in different ways. On average, the 2006 class saw eight principles and noted twelve citations.

Reliance on Plain Meaning

The starting point for determining the meaning of a statute is its language. Columbus at 307; see also Lamb at 319 (absent authority construing statute, court looks to language). Note that the dissent in Edmonds begins with an accusation that the majority ignores the plain language of the statute. However, it does not articulate a requirement that courts always have to use plain meaning. I thus did not include it in the list.

Absent a clearly expressed legislative intention to the contrary, courts should treat the plain language of the statute as conclusive. Hogar Agua at 324; see also Columbus dissent at 311 (where wording is broad and legislative history scant, give force to broad language).

Where a statute provides no definition of a term, courts should assume the legislature meant to employ the ordinary meaning of the term. Columbus at 304.

Courts should not announce equitable exceptions to statutory provisions that are unqualified by the text of the statute itself. Hogar Agua at 322.

Courts shouldn’t create equitable exceptions to comprehensive remedial statutes in an effort to protect individual defendants from occasional inequities. Hogar Agua at 322.

Looking at the Statute as a Whole

Courts should assess the meaning of particular statutory language in light of the entire statute. Hogar Agua at 324.

Courts should avoid interpretations that render any part of the statute meaningless. Hogar Agua at 324; see also Columbus at 307 (suggesting that statute should be interpreted to give meaning to differences in language in different provisions).

Where a legislature explicitly lists certain exemptions to a statute, courts should not imply other exemptions absent evidence of legislative intent. Hogar Agua at 322.

Broad and Narrow Reading

Courts should give ambiguous language in a remedial/anti-discrimination statute a generous construction consistent with its reformative purpose. City of Edmonds at 331 n.11; Hogar Agua at 321; see also id at 326 (same, where not contravened by authoritative legislative history).

Construing a statute only in ways that fulfill its primary purpose may be inconsistent with legislative intent. City of Edmonds dissent at 333.

Courts should interpret ambiguous exemptions to remedial statutes (or general statements of policy) narrowly. Columbus at 306; Hogar Agua at 321, 322; City of Edmonds at 329.

Use of Legislative History

Interpretation of a statute by its sponsor is an authoritative guide to the statute’s construction. if it is consistent with the statutory language. Hogar Agua at 325.

Inconsistent expressions of the sponsor’s intent are insufficient to override the plain meaning of the statute. Hogar Agua at 325 n.8.

More specific statements of the sponsor’s intent are more persuasive than more general ones. Hogar Agua at 325 n.8.

Statutes Viewed in the Context of the Legal System

If a legislature employs a legal term of art, courts should assume that it intends to adopt the body of legal learning that accompanies the term. City of Edmonds dissent at 334-35 n.5.

If a statute empowers the court to restrain violations, courts can utilize all of their traditional equity powers unless the statute limits those powers expressly or by a necessary and inescapable inference. Hogar Agua at 312 n.5

Courts should read statutes to avoid conflicts with the Constitution. Columbus dissent at 311.

Courts should not read a federal statute to pre-empt historic powers of the states unless Congress clearly indicated an intent to pre-empt. City of Edmonds at 329 n.5 & dissent at 334.

C. COMMENTS ON VIB

1. Analysis Requested for VI-B. The biggest problems with this part of the assignment have involved careless reading. First, many students did not follow the directions. If you are not sure what you are supposed to do, ask. Second, many students read the cases poorly. Some submissions went so far as to cite cases for principles they explicitly rejected. Your clients will not find that amusing. Finally, many students misread the Blatt excerpt. Again, if you are having trouble understanding something, ask. Almost every lawyer’s job involves careful reading of complex documents: cases, statutes, regulations, contracts, treaties, indentures, leases, insurance policies, etc. Get into the habit of reading slowly and carefully.

(a) Identifying the Relevant Community: The instructions asked you to begin each of your three examples by identifying which community might have been responsible for the statutory provision. Evidence pointing toward the political community includes line-drawing and other signs of compromise, exceptions and other provisions that benefit special interest groups, exclusive lists, multiple versions of a bill, and relatively plain language. If you are thinking of attributing a provision to the political community, you might try to identify what interest groups might have been involved in negotiation and compromise that resulted in the provision. Evidence pointing toward the policy community includes use of technical terms or complex definitions, attempts to be very precise or very thorough, use of flexible standards and inclusive lists.

The public community rarely is responsible for particular legislative language; as Blatt notes, their role is primarily agenda-setting. Evidence that statutory text itself has been dictated by the public includes simple structure and language, only one or two ideas embodied in the legislation, quick passage by large margins, and public outcry about the specific issue in question. I don’t think any of the language in the FHA suggests that the public community was primarily responsible. Just because the public is concerned about something doesn’t mean it dictated the form of the statute. Issues like tax reform or pollution controls often are raised because of public outcry, but the relevant statutory provisions like the Clean Air Act or the Internal Revenue Code are mostly combinations of complex policy-driven structures and hard fought compromises on key points.

I might analyze the key statutory provisions at issue in these cases as follows:

3603(b)(1): As the discussion in Hogar Agua makes clear, this provision was at least in part the product of political compromise. However, the complexity of the four provisos (especially parts (A) and (B) of the fourth proviso) might suggest some policy community involvement as well, perhaps attempting to articulate a general policy of distinguishing real estate professionals from other people.

3607(a): The religious exemption might arise from the policy community because it may demonstrate a concern for avoiding conflict with the First Amendment. On the other hand, it might represent a compromise exception put into the bill by the political process to insure support, e.g., of Congressmen from Northern and Midwestern urban districts with heavily ethnic Catholic populations. Similarly, the private club exception might be a policy-maker’s attempt to maintain a sphere of privacy or it might have been a trade-off for support of wealthier lobbyists or particular Congressmen.

3607(b)(1) In addition to the story about the policy community that you can find in the second model answer, you also could see this as a compromise reached with municipal governments, who are a powerful lobbying force and who were very concerned about the passage of the 1988 FHA Amendments that added both “familial status” and “handicap” to the list of protected characteristics.

(b) Description of How the Court Used the Principle: This stage of the analysis was relatively weak considering that all you were asked to do is describe the court’s reasoning. Some students simply quoted language from Blatt that seemed related to the principle in question without any discussion of what the court actually did. Many of you were much too general at this stage, discussing the ultimate issue the court was trying to decide, rather than the specific point for which it utilized the principle.. Of course the court was using the canon to help decide who won the case or how the statute applied. I was looking for you to show a clear sense of the way the court fit the canon into its arguments:

“The court used this principle in deciding to give the word “residence” its ordinary meaning in the definition of “dwelling” in §3602(b).”

“The court used this principle as one of its arguments supporting its refusal to allow an equitable exception to §3603(b)(1) proposed by the defendant.”

At this stage, many of you demonstrated convincingly that you had not read the cases very carefully. If you can’t comfortably articulate the logic of the court’s arguments in your own words, you don’t understand the case well enough.

(c) Comparison of Court’s Use of Principle with Prof. Blatt’s Ideas: Finally, you were to explore whether the court used the canon in the way Blatt says that community’s work should be handled. A number of students seemed to have trouble understanding the Blatt excerpt. If you are one of these, you should review the section below and the model answers.

2. Some Basics on Using Professor Blatt’s Analysis

(a) Brief Background: Professor Blatt’s analysis is relatively new, so although I think he has accurately identified patterns in the way courts read statutes, the courts themselves are probably unaware of either his basic ideas or his terminology. I find it helpful because it recognizes that legislation can be the result of several quite different processes and that courts interpreting statutes should treat the results of each of these processes differently.

(b) Quick & Dirty Overview

(i) Policy: Result of extensive investigative and consultive process involving experts, lobbyists, staffers and knowledgeable legislators; legislators are often not familiar with all details but rely on experts & colleagues; often comprehensive legislation using technical language and fitting into pre-existing legal framework in the area. Appropriate for Foster: purposive readings; Ejusdem Generis & In Pari Materia sensible; creating exemptions and extensions to meet unforeseen circumstances; fair to assume rational thought processes.

(ii) Political Community: Result of negotiated compromise between legislators effectively representing different special interest groups. Unconcerned with fitting into larger structure or internal coherence because getting the deal done often precludes other forms of planning and control. Appropriate for Keen: read literally to give effect to democratic process of give and take; exclusio unius and bars on equitable exceptions appropriate; no need to assume rational structure, just “a deal’s a deal.” Very common for a large policy community statute to have a few political community compromises embedded in it like negotiated single-family house exception in the larger, policy-driven FHA.

(iii) Public Community: Result of rapid legislative response to great public outcry. Legislators often have little time for thought and less room for political maneuvering. Blatt suggests readings vary based on sense of current public perception of issue. Justice Handy arguments here about adopting text to public will. As precipitating crisis gets further and further away, may want to interpret narrowly to avoid have 1976 emotional response controlling too much of 1990.

(iv) Canons: Blatt refers to three kinds of canons. Linguistic Canons are those that focus on the kind of language that is found in the statute. Referential Canons are those that tell the court how to use sources beside the statute itself. Substantive Canons are those that create presumptions about broad or narrow reading from the statute’s subject matter. As the excerpt points out, there are several canons of each kind, some of which are more suited for one community than for another.

3. Usage Issues & Commonly Confused Words & Phrases

(a) Commonly Confused Terms I:

Legislative intent: How the legislature would want the statute to handle a specific problem. All theories of statutory interpretation, to a greater or lesser degree, involve a search for legislative intent.

Statutory purpose(s): Overall goal(s) of the statute (e.g., to ensure fair housing for all Americans). Some theories of statutory interpretation suggest the court should use the purpose of the statute to help resolve ambiguities and sometimes even to undercut the plain language. These are what Blatt calls purposive theories and he associates them with the policy community.

(b) Commonly Confused Terms II:

Plain Language Arguments: Arguments that a court should identify legislative intent only (or at least primarily) from the text of the statute. Almost all judges will begin their analysis with the text, but some judges move away from it farther or faster. Plain language arguments are often contrasted with purposive approaches.

Ordinary Meaning: The most common or widely understood meaning of a word that has at least two different meanings or a range of possible meanings. This phrase frequently is contrasted to “technical meanings” While generally advocates of “plain language” also prefer “ordinary meanings,” one can make ordinary meaning arguments in contexts other than plain language.

(c) Usage Points:

(i) A “canon,” according to Black’s Law Dictionary, is a “law, rule, or ordinance in general, and of the church in particular.” The “canons of construction” are, according to the same source, “rules and maxims which are recognized as governing the construction or interpretation of written instruments.” By contrast, a “cannon” is, according to Webster’s, “a big gun.” Donn’t connfuse themm.

(ii) A “proviso” is a is a condition or limitation in a statute or contract, like the four clauses in §3603(b)(1) that begin “Provided that….” Not all parts of a statute are provisos. The first clause of §3603(b)(1) is not. The cases repeatedly refer to it as the “prefatory clause,” so you should as well.

D. ASSIGNMENT VIB: BEST STUDENT ANSWERS FROM PRIOR YEARS

(1) Where a statute provides no definition of a term, courts should assume the legislature meant to employ the ordinary meaning of the term (Columbus at 265): The court uses this principle to interpret §3602(b). This section is likely the result of the policy community, which is made up of professionals with specialized substantive knowledge. §3602(b) contains the definition of “dwelling.” Because of the definition’s complexity, its drafter likely had to employ some specialized knowledge or research to determine what the word meant. Therefore, the policy community was likely the force that drafted it.

The principle here says that one should look at the plain meaning of words in a statute. The court relied on Hughes Memorial Home, which looked in Webster’s Dictionary to determine what the word “residence” meant. Professor Blatt said that precision was very important to the policy community. Contrary to this, the “plain meaning” of words is often not precise, and is instead devolved from the interpretations and influences of many people. Under this logic, “plain meaning” is not an appropriate approach to the policy community, because it lacks the precision that it needs.

(2) Where a statute provides no definition of an important term, it is appropriate to assume that the ordinary meaning of the language that Congress employed accurately expresses the legislative purpose. Columbus Country Club at 265.

The court uses this principle to interpret §3602(b). This section seems to be attributable to the policy community because the complexity of the language reveals that it was probably drafted by experts rather than the legislature. The section is also clearly and precisely drafted, which indicates that the language was not subject to intense legislative scrutiny or the product of political compromise.

The court used the principle to give the word “residence its ordinary meaning as found in Webster’s Third New International Dictionary: “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.”

Professor Blatt stated that when interpreting legislation coming from the policy community, courts have a “wide leeway to modify the original enactment for unforeseen circumstances.” Blatt suggests that technical terms should be given a specialized meaning. The logical corollary to this premise is that in absence of any technical terms, words should be given their ordinary meaning.

Because the word “residence” is not deemed to be a technical term, the court seems to fit Blatt’s method of statutory construction, by way of omission, because the use of the specialized-meaning canon did not arise due to the absence of technical terms. On the other hand, Professor Blatt expressly applied the ordinary-meaning canon to legislation that is a product of the political community.

This raises the question of whether Blatt’s rules of statutory interpretation can apply to more than one community. I think such overlap is inevitable, especially in the present instance, where the provision in question is an introductory definition, which inherently demands the words to have its plain meaning (the efficacy of a definition is questionable if it requires further definition), regardless of which community produced it.

(2) Where a statute provides no definition of an important term, it is appropriate to assume that the ordinary meaning of the language that Congress employed accurately expresses the legislative purpose. Columbus Country Club at 265. The court uses this principle to interpret the word “dwellings” as defined in §3602(b) of the FHA. This statutory definition appears to be the product of either the policy or the political community. The definition’s detail and inclusion in the statute suggests that it was the results of experts of the policy community. Furthermore, the use of the term “residences” in the statutory definition might indicate that the drafters wanted the term to be flexible in order to effectuate the purpose of the statute. A less persuasive argument could be made for the definition being the product of the political community, as inclusion of the definition would serve to limit judicial interpretation of the term.

The court used this principle in concluding that a club’s seasonal bungalows were considered “dwellings” within the FHA. The court focused on the word “residence” within the statutory definition of “dwellings.” While the statute defined dwelling, it did not define “residence,” leading the court to apply the plain meaning of “residence.”

The court’s use of the principle seems to fit the way Prof. Blatt suggested the courts look at products of either the policy or political community. In terms of policy, the court’s use of the principle is consistent with Blast’s notion of “purposeful interpretation.” In interpreting the definition according to the ordinary meaning, the court does not contravene legislative purpose. In terms of politics, the court’s use of the provision is consistent with Blast’s discussion of interpretation aimed at discerning the particular result Congress intended. The court sticks to the text and gives words their ordinary meaning if ambiguous. Inclusion of this definition this serves to limit judicial interpretation and construction.

(4) Courts should avoid interpretations that render any part of the statute meaningless. Hogar Agua at 282. The Court in Hogar uses this principle to interpret provisos 1 and 3 of §3603 (b) and determine if a residence as residence is part of the three-SFH calculation. This provision is likely a product of the political community because the number three seems like an arbitrary cut-off, more likely the product of a bargain or tradeoff (with many Congressman owning 3 homes, they probably didn’t want to be constrained by their own legislation) than a highly scrutinized threshold for shielding smallholders. If the limit was raised or lowered by one the impact of the exemption would likely not change much.

The court used the principle by reasoning that the specific reference in proviso 2 to houses in which the defendant is not a resident must mean that proviso 1 and 3 impliedly include the defendant’s residence in the calculation, otherwise the distinction in proviso 2 is redundant and the language is rendered useless. Its use of the principle is not consistent with Professor Blatt’s suggestion: the political community is far more tolerant of redundancies, whereas the policy community values precision and would not likely tolerate surplusage.

What the policy community reads as a redundancy, the political community may read as the language needed to emphasize and secure a bargained for point (making sure that the bargain was achieved by using repetitive language.) Therefore, if these provisos are a product of the political community, the court’s application of this principle is inconsistent with Blatt’s position.

(5) Courts should construe statutory exemptions narrowly to preserve the general statutory policy. Edmonds at 280. The court uses this principle to interpret §3607(b)(1). This exemption seems likely to have been a product of the policy community because of the language used in the drafting, which seems to show that someone had specialized knowledge of the other applicable restrictions that were possible at the different levels of government. The court’s use of the principle seems to fit the way Professor Blatt suggested the courts look at the products of the policy community: Because the statute is drafted so that it can be applied broadly and with continuity, any exemptions should be construed narrowly to achieve the broadest application of the rule or policy.

(6) Courts should construe statutory exemptions narrowly to preserve the general statutory policy. Edmonds at 280. The Court in Edmonds uses this principle to interpret §3607(b)(1) to determine if the city ordinance fit into this maximum occupancy exemption. This exemption was likely the product of the policy community because the exemption addresses federalism concerns likely not on the minds of the public or political communities. Accordingly, a state or local municipality should be allowed to determine maximum occupancy zoning restrictions as they directly relate to the predominantly local concern of promoting public health and safety by preventing overcrowding.

The court used this principle to show that, after characterizing the ordinance as a family composition, rather than maximum occupancy regulation, the city could not claim the exemption because, narrowly construed, the exemption should be limited to the text and thus should only apply to maximum occupancy regulations. Its use of this principle is consistent with Professor Blatt’s recommendation because he notes that broad interpretations of remedial statutes typically occur with statutes produced by the policy community responding to public concerns.

Narrowly interpreting exemptions to remedial statutes is the flip side to the same coin. A narrow reading of an exemption to a remedial statute is the complement to a broad reading of the remedial statute itself, because both principles result in furthering the reach of and general policy concerns of the statute (in this case, by limiting the impact of the exemption).

(7) This student identified the expressio unius canon—“the expression of one thing excludes the other”—as underlying part of the discussion in Singleton at 274 & n.4. The court nowhere explicitly articulates this principle, so I didn’t include it on the list. However, the following analysis is good: The court in Singleton uses this principle to interpret §3603(b)(1)(A and B) to determine if a listing service is in the “business of renting dwellings.” That section of the statute is likely a product of the policy community because it broadly accounts for the impact that the real estate business has on access to housing if allowed to discriminate – even on a small scale, in conjunction with small-holders (trained professionals should get little leeway when discriminating in a professional capacity). If this was a product of the political community, the proviso may not have been worded as broadly because there may have been political pressure from real estate industry constituents to bargain for a less severe prohibition on real estate practices.

With this principle, the court determined the listing service fell into (A), noting the phrase “in the business of renting dwellings” should be broadly applied and restricted only by the list of approved entities in §3603(b)(1)(B), “attorneys, escrow agents, etc.” The court’s use of expressio unius is not consistent with the political community according to Professor Blatt. This principle typically coincides with the political community because “in the bargaining context the inclusion of one thing on the list is likely the exclusion of another thing.”

However, when taken with the first step of the court’s analysis (applying the phrase “in the business of renting dwellings” broadly), the second part of the analysis (adhering to the list in (B) – expressio unius) makes complies with Blatt’s analysis because 3603(b)(1)(A) is an exception to the main exemption §3603(b)(1)). That is, use of real estate business prevents one from claiming the smallholder exemption. Thus, narrow interpretation of the list that keeps one in §3603 and broad interpretation of the broad category in (A) is consistent with the principle of broadly construing “in the business of renting dwellings” and shortens the reach of the exemption.

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