Generally, these canons fall into two categories: non-substantive canons and substantive canons. The primary difference between the two is that the former is policy-neutral and the latter is not. For example, non-substantive canons often deal with grammatical or textual intricacies like interpreting a statutory provision to avoid surplusage. Opposed to that, substantive canons express a policy objective, like interpreting ambiguities in a punitive statute in favor of the defendant (called the rule of lenity).
I'm interested to know what you guys think about the use of a substantive canon to make sure that the court gets to the correct result economically. In other words, in the face of a statutory ambiguity, the court should interpret the statute in the manner that best enhances welfare. Let's put aside the question of whether anyone can determine what enhances welfare. So, assuming arguendo that that determination can be made, is it acceptable for a court to do this? This is a question answered in the affirmative by the law and economics crowd.
As an example, consider this hypothetical (I based this on the case Sturges v. Bridgman (1877) often used to illustrate the Coase Theorem, but changed a few of the facts):
Two businesses exist side by side. One business is a confectioner and uses a loud mortar in the preliminary stages of candy-making. The other business is a doctor's office that has a regular flow of patients. The doctor's office is disturbed by the noise of the large mortar and sues for nuisance, requesting an injunction against the use of the mortar. Assume for purposes of this hypothetical that: (1) the doctor's office is more profitable than the candyman's business; and (2) the statute governing nuisance is ambiguous on whether the mortar is a nuisance, i.e., it could reasonably be read either way.
The big questions: In this circumstance, should the court find for the doctor's office and issue an injunction on the basis of welfare enhancement, i.e., the doctor's office is more profitable? Should the existence of a social good (healing people as opposed to creating cavities) be factored into determining which activity better enhances welfare?
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Actually, as an asterisk to the post, some law and economics scholars, most notably Judge Posner, are opposed to canons of interpretations generally. Thus, my statement about the "law and economics crowd" is a bit overbroad.
ReplyDeleteDoes it matter who was there first? Thus, if the doctor moved in next to the candy shop, he should have weighed the cost that both he and his patients would have to bear by hearing the mortar when he evaluated that site. Given that, it hardly seems just to then make the candy maker incur the cost of the doctor's poor estimation. If the candy shop moved in after the doctor, I'm not sure what should happen.
ReplyDeleteMatt, is the doctor a plastic surgeon? Because that would change things quite a bit ;-)
ReplyDeleteI think a tax on junk food would fix this problem by putting the candy man out of a job.
Seriously, though, I think nuisance is not a good enough reason to interfere with the confectioner - unless he is putting the doctor's office out of business. People are still getting healed, although they might be slightly annoyed during their visit.
Ahhh. It lost my previous comment.
ReplyDeleteEssentially, being first in time can matter depending on zoning regulations. Assuming that this isn't industrial zoning, the problem is that Mr. Confectioner is sending sounds and vibrations across property lines to Mr. Doctor. And, yes, we can assume that Mr. Doctor is losing business. He wouldn't hire a lawyer (preferably a CLS grad), pay court expenses, and take time off to go to court if the boat wasn't taking on water.
The point I was trying to make is that in the face of a statutory ambiguity the court could make its decision based on economics: Mr. Doctor is more profitable than Mr. Confectioner, therefore, since the statute is unclear, Mr. Doctor wins. I'm personally uncomfortable with this type of decision, especially if this reasoning makes its way into the opinion. This utilitarian calculating may play a background role in the court's decision, but I would rather that the court resolve the statutory ambiguity in another way. Calculating and comparing profits doesn't seem like rule of law to me.
I think that question can easily be resolved in a free-market context: a) who is the incumbent (hence has older rights)? but more so: if one is liable to the other he has to make up for the other's losses incurred by the disturbance. If then the candymaker can still produce below prices he can command and doctor is exactly as well off as he were with more patients but less noise, that is what a free market would result in.
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