Law School Legal Outline Notes for Legal Profession II

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					LEGISLATIVE PROCESS CLASS NOTES AND OUTLINE

I.

INTRODUCTION TO THE LEGISLATIVE PROCESS:

A. 08-28-01 - INTRODUCTION: THE 1964 CIVIL RIGHTS ACT

1. Overview of Course:
a.

Legislative Process: 1) Political determinants 2) Deliberation 3) Statutes as Sources of Public Policy – Legal Theory. Statutory Interpretation 1) Theories of statutory interpretation 2) Rules and doctrines and canons

b.

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B. 08-30-01 - DESCRIPTIVE AND NORMATIVE THEORIES OF LEGISLATION:

1.

Summary: Interest Group Theory Procedural Theory Veto gates Deliberation Liberal Republican Institutional Theory Positive political theory ???

Descriptive Normative

Public Choice Pluralism

2.

Generally
a.

Understanding what “descriptive” and “normative” mean: 1) Descriptive theories: theory that gives an account of things as they are – explains, predicts, prescribes – leads to recommendations/prescriptions. 2) Normative theories: theory of how the legis process should work – not tied to reality at all – usually acknowledges descriptive theories Each theory focuses on a different feature of the legis process

b.

3.

Interest Group Theory
a.

Interest Group DESCRIPTIVE Theory = Public Choice 1) Definition: there is a political marketplace where the law of supply and demand apply – straight up economic theory. 2) Process: a) Demand = voters (1) Interests groups compete for political goods. b) Supply = legislators (1) Re-election motivates legislators behavior. 3) Assumptions: rational actors who are self-interest 4) Implications: a) Broadly distributed or narrowly concentrated benefits and costs. b) When benefits are concentrated, legislators get more bang for their bucks. 5) Criticism: a) Interest group theory does not take into account that legislators may have personal motivations other than re-election. b) Interest group theory does not take into account that there are different views re: what “representation” means (e.g., what is best for constituents or what constituents want). c) Interest group theory does not take into account problems of power distribution in society. Interest Group NORMATIVE Theory = Pluralism 1) Definition: focus on efficiency - it is good to have legis process be a competition among interests for political goods. a) Goal is the efficient distribution of political goods.

b.

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b) Want to have a controlled, constructive, orderly forum to allow competition and 2)

get right outcome Criticism: see above.

4.

Procedural Theory
a.

Procedural DESCRIPTIVE Theory #2 = Veto gate 1) Definition: focus on legis processes – there are various points in legis process where bill can get killed. a) Essence of legis process = “how do we stop legis from getting killed?” or “how do we kill it?” Procedural DESCRIPTIVE Theory #2 = Deliberation 1) Definition: deliberation leads to public airing which changes minds in chamber and in public – allows for public dialogue over longer term. Procedural NORMATIVE Theory #1 = Liberalism
1)

b.

c.

Definition: closer to libertarian or conservatism a) Private marketplace is good and govt is bad. b) Procedures are good b/c they gum up the works – stop govt from doing too much. c) Veto gates are good b/c stop govt from doing too much.

d.

Procedural NORMATIVE Theory #2 = Republicanism 1) Definition: focus on public interest/common good - deliberation is good b/c ensures that we do what is best for common good. a) Emphasis on representation and deliberation. b) Want to perfect the legis process: legis process is good b/c it pulls good ideas out of the marketplace of ideas. Criticisms of Procedural Theory 1) Too pollyannaish about participation: assumes full participation, assumes people care about political process. 2) How do you define “public good”?

e.

5.

Institutional Theory Institutional DESCRIPTIVE Theory = Positive Political Theory 1) Definition: focus is on institutions – each institution knows other actors are out there and that all are interdependent – in making choices, I have to keep in mind other actors a) Takes into account insights of other 2 theories b) ??? Game Theory 2) Casebook follows this approach b. Institutional NORMATIVE Theory = ???
a.

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C. 09-04-01 - TITLE VII: INTERPRETIVE ISSUES AND POLITICAL THEORIES:

1.

Summary: POLITICAL THEORIES IN INTERPRETATION Text Legislative Deal Purpose Text is a problem for Business concerns FOCUS the majority – weaker argument FOCUS Opponents concerns Weaker argument Precedent

majority (Brennan) Dissent (Rehnquist)

Weber

Weber

Santa Clara Santa Clara
dissent (Scalia) majority (Brennan)

Weber controls Weber is wrong –

thus, not controlling.

2.

THEME = understand how pluralist and republicans are diametrically opposed. Lessons
a. b. c. d.

3.

Want to win on all grounds – if you can’t, belittle the arguments you would lose. Look at intent of enacting Congress, not current Congress. Procedural, institutional and interest group effect way courts interpret statutes. Underlying all statutory interpretation are concerns about the nature and extent of proper legislature and judicial power.

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II. POLITICAL DETERMINANTS OF LEGISLATION

A. REPRESENTATIONAL STRUCTURES: POLITICAL EQUALITY AND RACIAL VOTE DILUTION

(P121-151) – SEPTEMBER 6, 2001: 1. Summary:
a.

Theories of Representation – tasks of electoral system: 1) Descriptive – demographic accuracy 2) Agency – preferential salience 3) Trusteeship – judgments about representative’s wisdom. Racial Gerrymandering: 1) Methods: a) Stacking b) Packing c) Cracking 2) Factual predicate – racially polarized voting. 3) Tie back into discussion about theories of representation: under each theory, what must be true of race?

b.

2. Theories of Representation – tasks of electoral system:
a.

Generally: 1) Bottom line about theories is legitimacy – each theory says how their version of legislature will be properly representative 2) Key Question - Is electoral process (elections) designed in a way that it will accurately enforce the focus of each theory? For example, will election return good agents to office and reject bad agents? Theories: 1) Descriptive – demographic accuracy – p121:
a)

b.

Definition: microcosm of collective, exact portrait

b) Legitimacy: think, feel, reason and act like the constituency. c)

Problems: (1) Compound characteristics - cannot figure out what “descriptive representative” truly means. (a) How do you aggregate characteristics – cannot be really representative – answer is to focus on most important characteristics (b) Example: if descriptive accurate in terms of class, may not be descriptively accurate in terms of religion, race (e.g., Cuban community in FL). (2) How to explain breakdown in representation: legislators have more/different info than constituency

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d) What do you want the electoral process to do to honor the descriptive

theory? (1) Want election process to elect a legislature that reflects demographic accuracy (2) Want election process to elect a legislature that reflects the most politically important/divisive characteristics among people. (a) Block voting: i. Do people of certain characteristic tend to vote for same candidates? What are important descriptive characteristics? j. Some characteristics result in more political commonality than others (compare degree of electoral cohesion among doctors with degree of political cohesion among fundamentalist Christians) (b) Homogeneity of groups.
e)

Comments: (1) Something intuitively attractive about this theory (2) But compound characteristics problem is a BIG ONE

2) Agency – preferential salience – p121: a)

Definition: follow orders (1) Corresponds to interest group theory/pluralist theory – preferences are pre-political, once interest groups duke it out and allocate power, agent is finding out preferences and then asserting them in the political arena. (2) We will talk about agency-pluralist theory throughout the course. (3) There is also moderate agency theory – if agent were in her position and knew (empirical knowledge) all that the agent knew. (4) Agency theory accounts for differences in empirical information – does not address moral information (no right and wrong decisions).

b) Legitimacy: c)

Problems: (1) How do you figure out what the people want (participation, $ to participate at higher level)? Who are the “people”? Whose preferences count? (2) BIG PROBLEM - what about intensity of preferences? (a) Example: what should agent representative do when 60% say approve but only 5% really care about the bill and of the 5% who really care, 75% oppose the bill? (3) Imperfection of preference measurement tools. (4) I think agent is not intent of Framers b/c limits representative’s abilities – Framers intended wise men.

d) What do you want the electoral process to do to honor the agency theory? (1) Preferential salience: want election to elect a legislature that accurately

reflects different kinds of preferences.
e)

Comment:

3) Trusteeship – judgments about representative’s wisdom - – p121:

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a)

Definition: use wisdom, do what is “best” for “public interest” (1) Like republicanism – truth to be revealed through process of deliberation – do what is in the common interest. (2) Theme – we will discuss republican-trusteeship theory.

b) Legitimacy: c)

Problems: (1) Handles problems of other two theories – instead get elected and go do the right thing. (2) Danger of elitism: is somebody really representative in any meaningful sense if they are acting on their own moral code. (3) Empirical problem: what does “public interest” mean?

d) What do we want the electoral process to do to honor trusteeship theory: (1) Make judgments about representative’s wisdom: want elections to elect

a legislature that accurately makes judgments about a representative’s wisdom.

e)

Comments:

3. Racial Gerrymandering:
a.

Generally: 1) Our focus: Not on the actual vote rights but on how vote right violations affect the legislative process? How do violations distort electoral process? Destroy production of effective legislature? Effect representation abilities of legislation? 2) Components of Right to Vote: a) ??? is there another one? b) One person, one vote: (1) Not apply in Senate c) Right to proper aggregation of my vote: right not to have our right to vote neutralized (gerrymandering (1) What does this mean and how do we stop it from happening (2) Comes up when governments draw district lines – historically line drawing used to advantage certain groups and disadvantage certain other groups – called political gerrymandering. Methods of Racial Gerrymandering: 1) Stacking – p126: 2) Packing – p126: 3) Cracking – p126: Racial Gerrymandering depends on a Factual Predicate – that people vote by race (called racially polarized voting): 1) If this factual predicate is wrong, then we should not be concerned with racial gerrymandering. 2) But racially polarized voting has been proven to be accurate.

b.

c.

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d.

Tie back into discussion about theories of representation - under each theory, what must be true of race? 1) Descriptive – race is important salient characteristic. 2) Agency – worry about RG if race distinguishes people’s preferences and their intensity of preferences. 3) Trusteeship – worry about RG if race distinguishes people’s judgments about whether their representative is “wise”.

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B. REPRESENTATIONAL STRUCTURES: POLITICAL GERRYMANDERING AND REVERSE

RACIAL VOTE DILUTION (P152-184) – SEPTEMBER 13, 2001: 1. Summary: Theories of Representation – tasks of electoral system: 1) Descriptive – demographic accuracy 2) Agency – interest/preference accuracy [preferential salience] 3) Trusteeship – judgmental accuracy [judgments about representative’s wisdom] b. Gerrymandering Cases: 1) City of Mobile v. Bolden (US 1980) – Stewart - p135: (race-minority) – no intent; claim fails. 2) Davis v. Bandermer (US 1986) – White – p154: (party) – no effect; claim fails. 3) Shaw v. Reno (US 1993) – O’Connor – p169: (race majority) – claim succeeds.
a.

2. Review: We are concerned about accurate representation (3 theories about what accurate representation may mean) b. Go through each theory (definition, focus, problem). c. What problems are particularly damaging to integrity of legislature.
a.

3. Case – City of Mobile v. Bolden (US 1980) – Stewart - p135 – NO INTENT; CLAIM FAILS: Facts: (RACE MINORITY) – city uses at large process, city has white majority. Held: No intent, claim fails. Reason: 1) In order to have under 14A E/P, have to show discriminatory intent. d. Marshall Dissent: 1) This is really important 2) Racial discrimination has been pernicious and continuous 3) Focus on 15A, explicitly speaks to voting.
a. b. c.

4. Case – Davis v. Bandermer (US 1986) – White – p154 – NO EFFECT; CLAIM FAILS:
a. b. c.

Facts: (PARTISAN GERRYMANDERING) Held: no effect, claim fails. Reason: 1) No question that there was intent to discriminate here. 2) But discrimination is nature of politics – key point – b/c this is politics, CT is hesitant to step in and regulate ordinary combat b/w Republicans and Democrats.
a) 3) CT said it will not find partisan gerrymandering unlawful unless P shows

discriminatory effect – requires really significant harm (over several elections, strong measure of unfairness).

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4) Democrats used stats evidence but CT not impressed. d.

e.

O’Connor Concur: 1) Says this is a political question, CT should not take this case. a) CT should only take gerrymandering cases when it involves racial minority b/c they are political powerless. 2) Astonishing b/c then O’Connor writes Shaw v. Reno: a) Mag says it is very important to read this concur – says this was a great defense of substantive equality, that is why it is so odd that they move to a more abstract view of racial equality. Notes:

5. Case - Shaw v. Reno (US 1993) – O’Connor – p169: a. Facts: (RACE MAJORITY) b. Held: claim succeeds. c. Reason: 1) You would think O’Connor would not take this case unless minority racial group is the P (b/c they cannot protect themselves in the political process) and thus that she would find against the P in this case. 2) INSTEAD, O’Connor says: a) District are so oddly joined that cannot be formed on any basis other than race. d. White Dissent e. Blackmun Dissent f. Stevens Dissent: 1) You would think, because in earlier cases where Stevens focus on bizarreness of districts as key factor for CT to take action against a gerrymandering, that he would find for the P in this case. 2) INSTEAD, Stevens: a) Says CT puts too much stock in bizarreness thing. b) Says he would shoot down this claim. g. Souter Dissent h. Notes: 1) After Boulden, CT says it will not interpret Constitution to protect against racial discrimination in voting unless there is a discriminatory intent but CT also upholds s2 of Voting Rights Act in another case and says Congress has a lot of power to protect racial discrimination in voting. But then Shaw seems to say you can’t just remedy voting discrimination, thus, does CT in Shaw overturn s2 of VRA – CT dodges this question in Shaw. a) In later case, Miller v. Ga., Kennedy seems to imply s2 may be unconstitutional but CT has never said that s2 is unconstitutional. 2) ??? Shaw leaves question of what legislators can do to remedy voting discrimination wide open – CT creates conundrum - legislators do not know what to do – can they obey s2 and 14A E/P. 3) After 2000 census, we will have another round of redistricting cases. 6. Discussion - Which of these cases was correctly decided and why? Or which were incorrectly decided and why? Did the cases do a good job of ensuring “accurate representation” in the legislature (using 3 theories)?
a.

Note the pattern: 1) First, CT says you have to have discriminatory intent

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2) Then, CT seems to require effect. 3) CT says intent is standard again, even “benign discriminatory intent” is

unconstitutional. a) Mag says discrimination against white people is a lot easier to prove than discrimination against black people – this is probably not what anyone intended with 14A and VRA. 4) How to ties these cases into the theories of representation? a) ??? O’Connor says this is going to give rise to a legal requirement for proportional representation (analogy for compulsion for affirmative action). b) Conundrum – if we require proof of intent, we are not solving discrimination, we are allowing accidental discrimination with harmful effects to continue BUT if focus on effect, then lead to proportional representation. (1) leads to alternative voting schemes (p166) 5) CT seemed to assume that we will only have two major parties. 7. Whether results in cases are correct and why? 8. What should be remedy for gerrymandering?

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C. CAMPAIGN FINANCE ( P227-262) – SEPTEMBER 18, 2001:

1.

Summary:

Summary Chart Holdings and Rationales
  

Buckley YES Rationale – corruption Contributions are “indirect” form of political expression b/c candidate is one that ends up doing the speaking – as long as restriction not so drastic, then not much of 1A problem
 

Pluralist-Agency YES/NO If $ is accurate reflection of intensity of preferences, then P/A would say restrictions are unconstitutional. If $ is NOT accurate representation of intensity of preferences, then say these restrictions are OK. NO Why?
  

Republican-Trusteeship YES $ generally gets in way of deliberation CAVEAT – wise reps get wisdom from listening to people, listen through $ - to ameliorate concern about elitism, you want reps to listen. YES B/c $ distorts process of deliberation and coming to public good – this general concern. COUNTER-ARGMT: if not distorting process, then may oppose b/c $ is way ideas get into the public dialogue – dialogue within electorate, as well as dialogue within legislature, is also central to this theory

Individual Contribution Limits





Independent Expenditure Limits



NO - CAVEAT: only impermissible if expenditure is truly independent – cannot be coordinated with candidate (CT says coordinated expenditures are constitutional b/c this is same as contribution).  ??? CAVEAT to CAVEAT: cannot regulate . . . Soft $: political party $ that is unregulated, party-building activities. NO This is regulation of direct political expression NO Corruption not come into play b/c candidate already has the S CT made distinction b/w contributions and expenditures b/c direct restriction on candidate’s ability to spend is direct restriction on political expression b/c candidate is one

 

 



SelfFinancing Limits

 

 

NO Why? NO Why? B/c market types P/A generally see $ as positive factor in elections ??? But this will depend on effect of $ in elections – look at practical consequences



YES

 

    



YES

Expenditure Limits – p230



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

that ends up doing the speaking - Counter: should restrict here b/c then candidate will now how much he can spend and will not seek $ from donors. This is content-based regulation – CT very hyped up on rationales that seem overly content-based. YES Actual or apparent corruption are enough of concern that some limits will be justified NO CT says this sounds like communism – not everyone is entitled to same expression – this rationale is inconsistent with 1A (Mag says this is definitely open to argument dependent upon how you characterize/define equality and how you characterize $ in politics) NO CT cannot use this b/c it is content based regulation – exactly what 1A prohibits – 1A prohibits regulation based on one person’s view of what political process should be.
 



RATIONAL E– Corruption



 





RATIONAL E– Equalization

 





RATIONAL E - Improve Process






a. b. c.

How would pluralist-agency theorist come out on these? How would republican-trusteeship theorist come out on these? Have we placed one person, one vote with one $, one vote – CT has said that voting is different that spending $.

2.

Review of theories:
a.

Pluralist-agency: dual of pre-existing private interest + rep’s job is to do what constituents tells rep to do. 1) Both very focused on private interests. Republican-trusteeship: (e.g. of process-oriented theory) deliberation + rep is supposed to make wise decisions for public good. 1) Both focus on deliberation and discourse and what best can be after deliberation.

b.

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c.

THEME - how do these behaviors (gerrymandering, racial vote dilution, campaign finance) interfere with accuracy of representation? BIG PICTURE - we are not treating this as 1A issue – more about effect on legislative process – our analysis about legislative process will influence 1A analysis. CONTEXT – campaign finance laws (FECA) came in wake of Watergate.

d.

e.

3.

Case - Buckley v. Valeo (US 1976) – p229:
a.

Basic form of 1A analysis that applies here – is content-based discrimination is presumed to be invalid (strict scrutiny). We are going to focus on the ends side of the equation.

b.

4.

Problems with Campaign Financing:
a. b. c. d.

Disparate ability to influence politics. “Special interest” take control. Potential for corruption Under trusteeship theory, reps are not going for public good – incentive is to disguise special influence but to serve that interest $ distorts/skews the intensity of preferences 1) Can also argue that $ reflects the intensity of preferences. $ limits potential pool of candidates. Detracts rep from doing his legis duties – spends all his time thinking about fundraising. Destroys deliberation process b/c rep only thinks about who will give him $ if he votes a certain way – this is trusteeship view.

e.

f. g.

h.

5.

2 kinds of Corruption:
a. b. c.

Quid Pro Quo. Anticipatory Corruption: not express but has same effect. Appearance of Corruption: 1) CT accepts this as a rationale b/c: a) would undermine confidence in the legislative process and our governmental system. b) This is circumstance evidence – lower standard of proof.

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D. DIRECT DEMOCRACY AS AN ALTERNATIVE TO REPUBLICAN GOVERNMENT (P499-537):

We did not discuss.

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III. LEGISLATIVE DELIBERATION

A. RULES OF LEGISLATIVE DELIBERATION; LEGISLATIVE IMMUNITIES (P267-69, 327-335,

361-380) – SEPTEMBER 20, 2001:
1.

Summary
a.

Rules Requiring Deliberation: 1) Committee Referral Requirements 2) Constitutional Requirements 3) Bicameralism and Presentment 4) Origination Clause (Munoz-Flores) (State) Rules Protecting Against “Special Interest” Legislation: 1) Generality Requirements 2) Single Subject Rule Legislative Immunities: 1) Speech & Debate Clause (Spallone) For each, determine . . . 1) Is it judicially enforceable 2) How would P/A view it? 3) How would R/T view it?

b.

c.

d.

2.

Rules Requiring Deliberation:
a.

Committee Referral Requirements
1) What Is GOOD about Rules Requiring Deliberation? a) Creates/forces compromise b) Forces everyone to take a look at certain legislation – easy consensus c) Veto gates – culls legislation that would be unsuccessful d) Good management device e) Provides evidence/legislative history for all sorts of purposes (elections, judicial f)

interpretation). Allows for first expert look

2) Judicial Enforcement: a) Is it judicially enforceable? No – this is self-imposed House decision - only b) Should it be? (1) There are arguments for and against. (2) What if piece of legis is forced through with no committee referrals –

remedy is political remedy.

thus no legislative debate? (a) No, court should only rule on substance, not look at legis history (b) Courts cannot fix every bad thing the legislature does.

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Court and Legislature should do - basis of these arguments is that we are looking at what the Constitution says legislature is supposed to do. (d) ??? Look to due process clause. (e) Without legislative history, court will not be able to apply its standards (cannot assess ends and means without legislative history) – this is how court will bring procedural considerations into substantive analysis – this may be sneaky way for court to make a judgment about legislature’s procedural rules. (f) DDD (3) Can court take the lack of debate into account directly?
3) P/A view it? Generally AGAINST a) For: b) Against: no reasons for this 4) R/T view it? Generally FOR a) For: Love deliberation – this is key – so, will support rules that require more b) Against: Take trusteeship to elitist logical conclusion, will be against any rules. b.

(c) Bottom line – does the Constitution support idea that this is what

deliberation.

Constitutional Requirements
1) Bicameralism and Presentment: a) Example = passage of Federal Line Item Veto Act – we will discuss on 09-25-

01.

b) Why is this GOOD? (1) Same reasons as above (2) Create possibilities for compromise (3) Deliberation in and of itself are good thing c) Judicial Enforcement: (1) Judicially enforceable? Yes. d) P/A view: see above e) R/T view: see above 2) Origination Clause (Munoz-Flores): all revenue legislation (taxes) must originate in

House b4 Senate. a) Rationale for House being well-spring of taxation: great suspicion of taxes at time, want tax to be connected to House (populace), not the removed, elitist Senate. b) Judicial Enforcement: (1) Judicially enforceable? (2) Should it be? (a) CT in Munoz-Flores dodges the issue – says this is NOT revenue. (b) If it is in the Constitution, it should be judicially enforced? i. Is that enough to justify CT interfering with legislature’s process? (c) But what if it is vague? What is “revenue”? (d) Stevens says NO: Stevens’ concur in Munoz-Flores – p387 – Stevens would say this is not judicially enforceable b/c it is a political question b/c there is no manageable standard – would treat this like a committee referral requirement. i. We know what taxes are.

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Cases that come up are going to be hard cases – we do not have a standard – then, CT should admit there is nothing for CT to regulate here. c) P/A View: see above d) R/T View: see above
ii. 3) What is difference b/w committee referral requirement and constitutional

requirements? Committee referral requirement is NOT judicially enforceable legislative.
3.

(State) Rules Protecting Against “Special Interest” Legislation:
a.

General Requirements:
1) Definition: legislation must be of general application, good of general public. a) Tax break for my friend Bob. b) Enforcement of this rule will go along a continuum. 2) Judicial Enforcement: 3) P/A view: 4) R/T View:

b.

Single Subject Rule:
1) Definition: no bundling, anti-logrolling rule. a) Logrolling = I’ll scratch your back if you scratch mine. (1) Concern b/c legislative minorities with special interests in mind, combine

to garner majority support even though none of them would garner majority support on its own.

2) Practical Problems with Single Subject Rule: a) Might screw up process of coalition building. b) Single subject rule not take care of problem of logrolling - why can’t you

just logroll a # of separate bills – just like a pesticide – legislatures will find ways around it. c) Unmanageable standard for judicial review.
3) ??? Judicial Enforcement: probably NOT unless a provision of state constitution a) Even if it is a constitutional provision, it is hard to enforce 4) P/A View: a) For SSR: (1) Logrolling gets in way of agency, skew intensity of interests. (2) Too much logrolling can self-destruct legislative process. b) Against SSR: will object to SSR b/c coalition-building, deal-making is a good c)

thing, logrolling if it works can be a beautiful thing. Lots of problems with empirical assumptions here.

5) R/T View:

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For SSR: (1) Logrolling violates republican notion of “public interest” (2) Logrolling gets in way of idealistic notion of “deliberation” (3) SSR rule reflects wisdom of reps – a wise decision to govern their legislative process b) Against SSR: (1) Let best and brightest do their thing – no need for rules – do not want to limit what trustee representatives can do – we trust them. (2) Very hard to figure out what “public interest” means: (a) E.g., how do majority and minority interests shake out in “public interests.
a) 6) Does same analysis apply for generality requirement?

4.

Legislative Immunities
a.

Speech and Debate Clause: 1) Definition: immunity for . . . b/c gets in way of robust debate. 2) Spallone case – KNOW THIS 3) Everybody likes this Judicial Enforcement: P/A view: R/T view:

b. c. d.

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B. THE LINE-ITEM VETO CONTROVERSY (P335-37, 342-60) – SEPTEMBER 25, 2001:

1.

Summary:
a. b. c. d. e.

Congress passes spending/tax bill President signs bill but cancels provisions Law as enacted Congress disapproves cancellation or not See picture on syllabus

2.

State LIV Generally:
a.

Definition: prez or governor can use LIV to veto part pieces of legislation and let rest be enacted into law – legislature can always override the veto. Rationale: 1) Fiscal discipline – goal was to balance budget – prevent pork barrel spending. 2) Prevent logrolling: a) Gives exec check against logrolling b) How does a line item get in there? result of deal-making (logrolling) - to garner support for major provisions of bill, offer to give minor provisions c) How might exec use this power? (1) Post-legislative process: prevents logrolling b/c high level of uncertainty about whether deal will survive (exec may cut it out). (2) During legislative process: (a) Exec will use this power during the legis process – exert control over legislative process (b) Exec as “super-bargainer” (c) Exec can make it known that he will or will not veto a particular line item. (d) But legislative can still exercise override – depends on % needed for override – determines exec’s power.

b.

3.

Compare and Contrast SSR, generality rule & line item veto:
a. b.

In Common: all aimed at preventing deal-making Differences in how these checking devices are enforced: 1) SSR usually judicially enforceable 2) LIV: political situation, enforced by exec, factors that determine whether this check will be effective 3) On state level, LIV may be more effective, more use checking device b/c no institutional scruples at issue.

4.

Analyze Effectiveness/Utility of State LIV from Representation Theories:

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a.

R/T: 1) Oppose LIV: a) May be bad b/c gives exec increased amount of power to influence legis process – distorts deliberation process. b) This will interfere with/delay the process of activist govt (which R/T like b/c it is for public interest). 2) Favor LIV (majority): a) Discourages deal-making (and R/T do not like deal-making). b) Look at exec as public good check. P/A: 1) Oppose LIV (majority): a) LIV interferes with deal-making which is central to legislative process b/c its goal is to prevent deal-making. 2) Favor LIV: a) Exec will increase efficiency of deal-making process.

b.

5.

Federal LIV Generally:
a.

Definition and Process:
1)

??? FLIV only applies to taxing and spending provisions: a) This was first time Congress recognizes tax benefit as equivalent to spending provision

3 different kinds effected – purpose was to balance budget. new entitlement items new discretionary spending tax provisions that have spending aspects
2)

Process: a) Congress passes spending/tax bill b) President signs entire bill into law and then cancels certain provisions – bill is LAW. c) Congress can vote to approve or disapprove the Prez’s cancellation (1) If approve: bill minus prez’s cancellations = LAW (2) If disapprove: bill as enacted by Congress b4 prez cancellations = LAW. (3) If Congress does not vote, constitutes tacit approval with a time limit. Procedurally differs from usual veto scenario b/c no part of bill goes into law until signed or overridden.

3)

b.

How might FLIV distort legislative process? 1) Prez is making law. 2) Changes ordinary rules of legis game. 3) Created new weird political incentives (context for congressional action which may have political and substantive legal consequences).

6.

Clinton v. City of NY (US 1998) – Stevens – p342:

22

a. b. c.

Issue: is FLIV constitutional? Held: FLIV is unconstitutional Reason: 1) Procedurally unconstitutional b/c violates Presentment Clause (FLIV is an end run around ART VII, s1 procedures). 2) Tantamount to allowing prez to amend or repeal legislation. Scalia Dissent – p348: 1) Odd b/c Scalia is usually very formulistic – here Scalia is the realist. 2) Cancellation power is not unlike discretionary spending (prez does not have to spend all the $ that is approved) a) FLIV is not different than what goes on all the time in different guises. 3) Non-Delegation Doctrine: a) Scalia and Breyer find no violation of non-delegation doctrine b/c Congress did provide the guidelines, boundaries and principles. b) Definition: Congress may delegate some portion of its law-making authority if it provides sufficient guidelines, boundaries and intelligible principles. c) Rationale: okay b/c Congress still making the rules, still making big policy decisions. d) Scalia says this is recognition of modern administrative state – just like delegating rule making to administrative agencies. e) Majority tried to ignore non-delegation doctrine: may have taken such a formalistic approach b/c it did not want to get into non-delegation doctrine. Breyer Dissent: 1) It is WRONG to say that prez by exercise cancellation power is doing something he does not have power to do. a) Prez is actually executing the law when he exercise the cancellation power. (1) All that Congress is doing is laying out law that prez must following in different areas. (2) Mag says Breyer is probably not right about this. 2) FLIV is tantamount to SSR: Congress can either send prez 1000 bills rather than one 1000 provision bill. a) All we are doing is making Congress adopt de factor SSR rule – bad b/c we are taking away ability of Congress to use practical device. 3) Non-Delegation doctrine: see description in Scalia. Notes – Who Has the Better Argument? 1) Mag says on formalistic terms, majority is right 2) The real power of the dissents is on the practical level – even if there is a formal violation, it is better to allow Congress to operate this way – big issue – does this serve the value we have been discussing (theories of representation).

d.

e.

f.

23

C. REGULATING “CORRUPT” DELIBERATION (P269-285) - SEPTEMBER 27, 2001:

1.

Summary:
a. b.

Accurate Representation = honest, uninhibited legislative process. Theme: both honest and uninhibited are essential to legislative process – is it possible to have both - an honest process and an uninhibited process

2.

People ex rel. Dickinson v. Van De Carr (NY 1903) – p272:
a.

Facts: head of street cleaning wants more $ for his department (good purpose) – legislator says I will vote for more $ provision if you re-instate Covino. Held: this is a bribe, violates state act. Reason: 1) Legislator argues this is NOT a bribe b/c no quid pro quo, this does not benefit the legislator personally – I am just trading political goods – I did not accept a bribe. 2) Ct rejects legislator’s argument – takes a trustee approach: a) This kind of trade-off distorts the trustee function/duty – not in best interests of constituents. Note - open question – why does legislator care about Covino? Who is Covino? 1) If he is related to legislator, then probably bribery/corruption. 2) What if legislator read about this case and just believed it was really unjust (enforce abstract notion of justice) – this is tougher question – is this corrupt? 3) See discussion about corruption below. Note - What do we think R/T would think of result? 1) Agree with ct’s approach – see above. 2) Disagree with ct’s approach - could also argue trustee may also say this meets trustee theory b/c what legislator did was in his constituents’ interests b/c department was in his district. Note - What do we think P/A would think of result? 1) Agree with ct b/c may be a bad deal . . . a) BUT how much do we know? How much can we know about legislative dealmaking? 2) Disagree with ct b/c deal-making is hallmark of P/A theory – like rules that facilitate and protect deal-making and dislike rules that interfere with deal-making BUT deal only as good as motivation behind it. Note - is bribery punishable if your idea of good legis process focuses on dealmaking?

b. c.

d.

e.

f.

g.

3.

What = “corruption”?

24

a.

Different Answers: 1) Only something that is in own self-interest 2) But still worried about process – cannot allow legislators to go off on own moral notions of justice. Does it matter whether legislator votes the way he is paid to vote or is mere fact he is paid enough? KEY POINT - even something as seemingly concrete as corruption, is indeterminant and depends on your theory of political representation process.

b.

c.

4.

US v. Helstoski (US 1979) – CJ Burger – p370:
a.

Facts: clearly engaged in corrupt behavior, take $ from immigrants and then vote for their proposal, Helstoski made stmts about his votes on legislation. Issue: does Helstoski have legis immunity? Held:

b. c.

ACG missed this discussion
d. e.

Reason: Notes: 1) Uncomfortable result esp b/c legis take $ all the time, they are supposed to – how can you tell the difference b/w legal fund raising and bribes.

5.

??? Problem 3-2 – Keating and Cranston - p283:
a. b. c.

Is this corrupt? Assume it is corrupt – is it illegal? Many problems 1) What is relationship b/w quid and the pro? 2) How much does $ influence? 3) It may be corrupt but is it illegal? 4) How should it be enforced? Should this be punishable?

25

D. LOBBYING (P285-322) – OCTOBER 2, 2001:

I was late to class this day
1.

Summary:

This activity defines the difference b/w R/T and P/A theories. Constitutional Impediments to Regulating the Legislative Process Regulation Impediment Interest Mandatory Deliberation Unenforceable Legislative independence Constitutionally mandated Anti-logrolling (e.g., LIV) legislative process Legislative independence Prosecution of Corruption Lobbying Restrictions Campaign Finance Reforms Rules Against Gerrymandering Speech or Debate Clause 1A 1A Various Legislative independence Personal freedom Personal freedom Personal freedom Note

2.

Pros of Lobbying:

Get notes from Erika Doyle or Greg.
3.

Cons of Lobbying:

Get notes from Erika Doyle or Greg.
4.

R/T View of Lobbying: probably AGAINST lobbying
a. b.

For lobbying: there are some arguments on this side. Against lobbying: 1) Concerned that lobbying will threaten integrity of legis process – disproportionate influence by small # of people. 2) Lobbyist comes b/w people and representation (whether this is good or bad will depend on openness of system and how good or bad the info is). 3) Trustee do not want representatives to be responding to immediate questions from the people – want legislator who has set of quality and then responds once he has some additional info

5.

P/A View of Lobbying: probably FOR lobbying

26

For lobbying: 1) Lobbying is essential to agency representation. 2) Natural model for how pluralist legis process would work. 3) Caution: may be against it if it does not (1) accurately represent intensity of preferences; (2) process has to b. Against lobbying: there are some argument on this side.
a. 6.

Federal Regulation Lobbying Act (FLRA) of 1946 - 290: Enacted off-handedly – part of big appropriations bill – example of badly drafted statute – swept within it all political activity. b. Broad disclosure requirements. c. Defining category of when you have to disclose: you have to disclose when you seek to effect legislation.
a.

7.

Case - US v. Harriss (US 1954) – p293): Facts: S305 and s307, height of McCarthy era – climate of guilt by association. Held: constitutional but CT reinterprets. Reason: 1) Key problem = vagueness – huge 1A concerns. 2) But CT does not strike it down – instead CT narrowly constructs statute (arguably rewrites the statute) to save it from unconstitutionality. a) Govt’s argument would mean the statute applied to a huge range of political activity – including grassroots lobbying. b) CT interpreted statute to only affect direct communication – see p293. 3) Why didn’t CT just strike this down? a) “Canon of constitutional bout”: in general ct will read statute to avoid constitutional problems – this is a doctrine of judicial restraint but can also lead to an exercise of power. 4) Does the new interpretation achieve its objectives? a) Not really achieve its objectives – some argue the CT produced the worse of both worlds – lower cts say this as an unworkable statute to enforce. d. Douglas Dissent:: CT rewrote the statute – this is not the CT’s role. e. Notes: 1) Post-Harriss, the FLRA became dead letter. 2) Not much incentive to re-enact or pass lobbying regulation b/c subject of legislation (legislators) were the ones who have to write the bill. 3) Republican takeover of House of Reps in 1994 – get Lobbying Disclosure Act (LDA) of 1995.
a. b. c.

8.

LDA of 1995 – p305:
a.

If you fall under the act, what do you have to do? 1) Disclose lost of info, including register as lobby and submit semi-annual reports. READ this very thoroughly.

b.

27

c.

Congress used very precise definitions to narrow the field of people covered to “serious lobbyists.” Congress tries to avoid 1A problems that sunk FLRA by: 1) s3(8)(B) – “Exceptions” 2) s8(a) – “Constitutional Rights”: exclude things that feel within core 1A activity– device aimed at cts. 3) Does not cover grassroots lobbying (FLRA did cover this – this was bad). BIG QUESTION - Does LDA go so far in protect 1A freedoms that it does not effectively regulating lobbying? 1) There are no hard prohibitions here. 2) Disclosure regime would probably satisfy P/A but not R/T. 3) Mag says this is analogous to Buckeley v. Valeo. 4) Mag asks can we regulate lobbying more substantively or prohibit more without violating 1A rights. 5) Balance b/w enforcement and restraint has been struck appropriately – possible exam question.

d.

e.

28

E. OCTOBER 4, 2001 - DUE PROCESS OF LAWMAKING (381-406):

1.

Summary
a. b.

Representation re-enforcing review? Explicit constitutional requirements – US v. Munoz Flores (US 1990) VS. Clinton v. New York (US ????) Requiring proper decision-maker/real reason – Hampton v. Mow Sun Wong (US 1976) Requiring deliberations where minorities right at stake - Fullilove v. Klutznick (US 1980)

c.

d.

2.

Generally:
a. b. c.

Today is a transition from rules governing legislation process to statutory theory. Stevens is leading character in due process of lawmaking. Big themes: 1) How would R/T and P/A view this? 2) Proper enforceability 3) Inherent SOP issues

3.

Representation Re-enforcing review?
a.

Analogy: if process breaks down, court should be allowed to come in and fix political system (like regulators fixing market failure) FN#4 of Carolene Products names 2 times when CT can do aggressive substantive review of statutes (get over our usual concern about CT [non-majoritarian branch] interfering with majoritarian branches): 1) If governmental action blocks peoples’ access to machinery of government, mess with proper functioning of govt. 2) If have governmental action that undermines rights of discrete and insular minorities, then CT can take harder look at what majoritarian branches of govt are doing. FN#4 and representation re-enforcing review forms basis of due process of lawmaking. Know the counter-argument to RRR.

b.

c.

d.

4.

Explicit Constitutional Requirements:

29

a. b.

General Rule: judicial enforcement seems appropriate when rule is constitutional: Even here there is tension – compare: 1) Munoz-Flores where CT categorizes its way out of the difficulty by saying statute was not a “revenue” statute a) But see Stevens’ concurrence: statute is revenue but we should let statute stand b/c this is political question (no judicial remedy here) 2) Clinton v. NY where CT says we have to follow constitutional procedures and CT can enforce those constitutional rules. Seems to be something wrong with a court saying this statute b/c not passed in the right way but due process of lawmaking will deal with this.

c.

5.

Requiring Proper Decision-maker/real reason:
a.

What if you do not have a constitutional rule? 1) CT’s other decisions seem to say that CT cannot do anything. 2) But there is FN#4 history. Case - Hampton v. Mow Sun Wong (US
1)

b.

Facts: 5 resident aliens challenged CSC has rule that bars non-citizens from employment in federal civil service. Held: this rule is denies aliens’ liberty without due process of law. Reason:
a)

2) 3)

Who made this decision? Was this decision made by Congress or Prez or by CSC (as a question of personnel administration)?

b) Govt’s Argmt: (1) Govt has 3 reasons: (a) Facilitate Prez’s negotiation of treaties (b) Incentive for aliens to become citizens (c) Need undivided loyalty in sensitive positions (2) Stevens rejects this argmt (a) Have to say here are the reasons and they actually motivated the (b) If Prez or Congress directly took this action and named these reasons,

decisions – cannot come up with reasons after the fact. that would be OK

(c) If agency took the action was taken by agency and it was an agency

charged with dealing with these compelling concerns, that would be OK (d) If action was taken by agency, that is not OK – Stevens wants more of a connection b/w decision and reasons (e) But neither of these scenarios were the case here.
c)

Does Stevens reasoning reflect representation re-enforcing review? (1) NO – b/c no concern with counter-majoritarian difficulty b/c CT struck down action by an agency, not action by a majoritarian branch.

30

(2) YES – this is example of breakdown in political system, political

accountability and political representation: (a) People cannot vote the CSC out of its job: if a govt (via agency) decision gets made in this kind of attenuated way, then no way for political process to address this – thus, CT can step in – procedural equivalent of what FN#4 is about. (b) No body whose butt is on the line took controversial action

4)

Notes: a) Post-script: this may have just been a Stevens anomaly b) This theory has not been followed in SOP or due process context, except in the federalism area (NY v US)

6.

Requiring Deliberations Where Minorities’ Rights at Stake:
a.

Case - Fullilove v. Klutznick (US 1980) – plurality: 1) Facts: minority set aside 2) Held: upholds federal minority set aside program 3) Reason: motivation for legis was obvious – no need for lots of deliberation. 4) Stevens: a) Stevens focuses on procedural aspect: says Congress passed this act without any real debate – this was example of legis process being hijacked by special interests. 5) Notes: a) Should CT be concerned at all with the quantum of deliberation/focusing on process? Why? b) Was Stevens right and plurality wrong that this act lacked procedural integrity?

31

IV. STATUTES AS A SOURCE OF PUBLIC POLICY A. OCTOBER 9, 2001 - STATUTES AS PRINCIPLED LAW (P559-99): 1.

Summary: Legal Realism Law & Econ Legal Positivism (Holmes) Purposeful/Principled Law (Brandeis) Legal Process Theory Critical Legal Studies

C/L Formalism

2.

Generally: Transitioning into what courts do with legis – how we as attys try to persuade cts to interpret statutes in part way b. Reading gives you big picture legal theories c. Statutes are different than judge made law – distinction b/w judge made and statutory law – retroactivity d. Judicial interpretation of statute is generally retroactive e. Authors of casebook adhere to Legal Process Theory
a.

3.

Common Law Formalism:
a.

Definition 1) Long legal traditions in c/l 2) Legal terms have fixed meaning 3) Job of judge is simple – apply fixed meanings to resolve disputes. How would common law formalist judge look at difference b/w statutes and judge-made law? 1) Statutes are discrete entities: statutes are not part of broader direction in legal tradition that should influence our interpretation of other statutes. 2) Judges are principled: judicial process is process of reason – judges reasoned objective application of well-understood, neutral principles 3) Legislatures are unprincipled/political: legislatures are barbaric in their process – no objectivity 4) C/L formalist judge will construe statutes narrowly 5) If statute comes into conflict with c/l principle, c/l principle wins. Problems: 1) Question objectivity of judges – judges do have problems to engage in normative decision-making. 2) Not designed to accommodate change – prevent change b/c of strong pull to tradition.

b.

c.

32

3) 4)

Its disingenuous to say terms are fixed. Contradicts/ignores representative govt and Constitution’s mandate to legislature: a) C/L Formalism Theory is based on idea that we want a law that transcends society and to do so, we look to tradition BUT this comes into conflict with idea in U.S. that people are sovereign – people’s understanding of law should have more weight. b) C/L Formalism Theory gives little effect to law-making branch’s power. c) If cts are aggressively constraining the will of the people as reflected in laws passed by legislature, this also is judicial activism

4.

Legal Realism:
a.

Definition 1) Blows lid off notion of fixed meanings and objective judge made law (reject idea that judge made law is objective and rejects idea of fixed meanings) 2) Law is dynamic 3) All law has normative inputs behind it (unconscious preference of judge, legislative wants) Compare Holmes and Brandeis Views of Legal Realism: 2 STRAINS OF LEGAL REALISM

b.

Legal Positivism (Holmes in the early years)
 

Purposive/Principles Law (Brandeis)
 Emphasis on institutions: how do different law

“Law is politics” Problem: (1) can slide into nihilism (2) notice (if everything is relative, subjective, how can law affect behavior?).

givers” (judges and legislatures) go about doing what they do? How do the characteristics of these institutions affect the making of coherent law?  Compromise: looking for way of sustaining formalist faith in law (there is ability to transcend policy judgments there is something more than pure politics) within context of legal realism (there is no perfect pure neutral c/l).  Emphasis on Underlying Principles/Purposes: look at higher level of abstracter to identify broader principles - interpret statutes to give effect to principles - judges can look for broad policies underlying the statutes – this can be a law that over time develops some measure of consistency.  Problem: cedes/defers too much to legislature

c.

How would common law formalist judge look at difference b/w statutes and judge-made law? 1) Collapses distinction b/w judgment and statutory law. Legal Process Theory
1)

d.

Definition: comes from idea that judges can look for broad policies underlying the statutes – this can be a law that over time develops some measure of consistency.

33

2)

Case – Moragne v. States Marine Lines, Inc. (US 1970) – 9-0 – Harlan - p572:
a) b) c) d)

Facts: wife of man killed while at sea Issue: Held: Reason: (1) CT really wants to create wrongful death c/a (2) Harlan rejects English principle that results in absence of wrongful death action here: Harlan rejects this b/c there is no good reason for absence of wrongful death statute. (3) Look at principles reflected in statutory developments in US to buttress idea that widow should have c/a. (a) These federal maritime statutes include wrongful death provisions – shows that wrongful death c/a should be available in case like this. (b) Problem with federal maritime statutes: only apply in international waters, federal statutes expressly say these statutes do not overrule state law  Does this language nullify any support that these federal statutes might give to his argument that statutes indicate what state law should be? (c) Harlan gets around express provision by saying federal statutes just meant as floor preemption. (4) There is no evidence that allowing this action to go forward would violate FL public policy. e) Notes: this is great example of legal process thinking 3) ??? How is legal process thinking different that legal positivism or legal purposivism?
e.

Multi-Theory Case – State v. Warshow (VT 1979) – p567: 1) Facts: Ds try to raise necessity defense to trespass/protest case. 2) Issue: should trial court have submitted necessity defense question to jury? 3) Majority: a) No necessity defense b/c D’s not meet the fixed meaning of legal terms. b) Reflects c/l formalist approach: says application of law to these facts is a simple matter. 4) Hills’ concur a) No necessity defense b/c once you balance all policies/priorities/purposes underlying c/l necessity defense and c/l trespass and taking into account state’s support of nuclear power, there is no basis on which necessity could succeed. b) Reflects Brandeis’ purposive approach and institutional emphasis (give a lot of weight to legislative policy judgments). c) Criticizes majority’s reasoning but comes to same result. 5) Billings Dissent: a) Necessity defense should have gone to jury b/c there is enough of danger of injury here b) Agrees with Hill that a legislative judgment was struck here but says legislature blew it here – this is a wrong policy judgment (1) Ironic b/c while beating up Hill, he applies formalist methodology and reasoning c) Criticizes majority and concur and comes to different result. 6) Who’s Right on Result? Who is Right in the Analysis?

34

a)

Most judicial opinions have kitchen sink approach – use all the different theories.

35

B. OCTOBER 16, 2001 - STARE DECISIS AND PROSPECTIVITY OF JUDICIAL DECISIONS (P599-

634):
1.

Summary

Retroactivity Pure Prospectivity Selective Prospectivity

Final jdgmts

Case b4 the court

Cases pending on appeal

Case pending at trial

Future cases

2.

Compare Nature of Statutes As Law and Nature of Judge Made Law:
a. b.

Why are statutes so different from judge made law? Remember idea that CT’s should not be making policy decisions is not a rule – just a theory. Key Presumption
1)

c.

When ct says a statute means X, we take that to mean that statute has always meant X (not that it means X from that day forward). Problems with this presumption: a) Upsets reliance. b) Questions legitimacy of court’s past decisions: (1) What if court’s interpretation indirectly conflicts with prior judicial holdings (people who were held liable under law b4 ct had this understanding of statute).

2)

3.

2 Types of Coherence:
a.

2 Types of Coherence: 1) Horizontal coherence – p600: a) Consistent with other existing laws/decisions. b) More of a dictate of consistent policy making.
2)

Vertical coherence – p599: a) Concerned about consistency over time – consistency with past precedent adherence to pre-existing set of norms, laws. b) Sample forms of vertical coherence (1) Presumption of judicial retroactivity

36

(2) Stare decisis b.

We will be challenging 2 legal truisms: 1) Presumption of statutory prospectivity (CT decisions re: statutory law): a) Thus, statutory law should be horizontally coherently. 2) Presumption of judicial retroactivity (CT decisions re: judge made law): a) Judge made law should be vertically coherent and judges should not be concerned with vertical coherence. Why the difference? See above

c.

4.

Stare Decisis as Vehicle of Vertical Coherence:
a.

Why should courts adhere to past precedent? 1) Notice, reliance, consistency. 2) Prevent judicial policy-making 3) Question of judicial legitimacy: judges are not making new law, thus, it is problematic if judges change their mind 4) Efficiency: practical benefit – culmination of wisdom. Why Shouldn’t Courts Follow Precedent? Justifies maintaining the status quo: favors past distributions, orderings and results. Stare decisis provides cover for judicial policy-making: can be manipulated to desired outcome. 3) Consistency is not so great: Americans pride themselves on dynamism.
1) 2)

b.

c.

Chart outlines reasons for different rules




STATUTES Made by elected representatives – thus, statutes

JUDGE MADE LAW Judges are not elected – cts should not counter

37

are assumed to reflect the will of the people.
  

the will of the people.


Legislature makes the law. No case or controversy requirement. Legislatures supposed to be making policy decision

Judges interpreting law, not finding the law, or making the law. Judges only make decisions where there is a federal case or controversy. Cts not supposed to be making decisions that depend on policy We use legal truism, that judge made decisions should be vertically coherent as way to enforce distinction that legislatures are suppose to make policy and courts are not. Presumption that when ct says a statute means X, we take that to mean that statute has always meant X (not that it means X from that day forward).



 



5.

Stare Decisis - Flood v. Kuhn (US 1972) – Blackmun – p601:
a. b. c.

Issue: Is baseball subject to Sherman? Held: No – b/c precedent Reason:
1)

Federal Baseball Club case said baseball was not subject to Sherman Act b/c not involve interstate commerce – this is clearly facially wrong precedent. We acknowledge this precedent is wrong (and logically discredited) but we are sticking to it b/c:
a)

2)

Congressional inaction shows tacit Congressional agmt: (1) Problem with this rationale – cannot draw conclusion from congressional inaction b/c legislature subject to politic pressure: judicial decisions are not supposed to be subject to political pressure – Congress may not be able to correct this decision even if it is wrong – does not mean Congress is saying CT is right. (2) Problem with this rationale – Congress relying on CT’s interpretation of Sherman Act.

b) Reliance interest: (1) Problem with this rationale – circular argmt with logical flaw: this

reliance is unreasonable BUT reliance is reasonable to extent that baseball teams know CT enforces this rule even if it is wrong. (2) Problem with this rationale – if you take this rationale to its extreme, it is ugly.
38

(a) Relied on Dred Scott, etc. c)

This is congress’ job to overrule this (1) This rationale is based on institutional division of labor. (2) Where do you place the blame for the misinterpretation of the statute – with Congress or the CT? (3) Problem with this rationale – CT is abdicating its duty. (4) Problem with this rationale – CT should clean up its own mess

d) More harm would be done by overturning the case than by upholding it: (1) This is common status quo argmt – change will come about in some

other way, do not need to overrule this case. depart from stare decisis in most cases.

(2) Bigger argmt: it would do more harm than good in the big picture to

d.

Notes: 1) Rule: super strong presumption against overruling statutory precedent – p610. 2) Rationale: a) It is more important that the applicable rule of law be settled than that it be settled right – p610. b) Retroactivity problems c) Courts are not proper forum

6.

When It is Appropriate to Overrule a Statutory Precedent?
a. b.

ADD CATEGORIES from p612 CT’s current approach on when stare decisis is binding – pragmatic approach – p615.

7.

Retroactivity as Vehicle of Vertical Coherence:
a.

Retroactivity: 1) General Principles: a) Presumption of judicial retroactivity for judge-made law – Chevron. b) Standards to apply a decision purely prospectively – exceptional circumstances . ... c) Selective prospectivity generally not allowed for judicial decision-making – Harper v. VA Board of Taxation d) Harper did not shoot down pure prospectively
2)

Comparison Chart:

DEFINITIONS AND PROBLEMS WITH EACH APPROACH Retroactivity Pure Prospectivity Selective Prospectivity

39

Benefits Problems

   





Difficult to implement Floodgates No accountability

  



Party bringing case wants a remedy – doesn’t get one Potentially advisory opinion Potential to enhance judicial power to unconstitutional decree – b/c no accountability. Judicial policymaking

 

E/P concerns Due Pro concerns

40

C. OCTOBER 18, 2001 - RETROACTIVITY OF STATUTES (P634-658): 1.

Summary
a.

Generally Rehash: 1) We have been talking about how cts and legislatures deal with each other and interact, rely on each other institutionally. 2) Tuesday, we focused on judge made law - today we are focusing on statutory law side 3) Opposite presumptions: a) Presumption of judge made law retroactivity b) Presumption of statutory prospectivity Presumption of Statutory Prospectivity – WHY?
Retroactive Prospective

b.

Enactment of statute

c.

Jawish v. Morlet chronology:

1918 Statute enacted

1923 CT declares statute unconst’l

1937 CT overrules its 1923 decision

1940 AG declares statute enforceable

1952 Jawish case

2.

Rationale for presumption:
a.

Notice: 1) Judge made law is “law finding” so retroactive application OK v. legislature who do “law making” 2) Problem with this: judges clearly do “law making” a) Response: but they are not supposed to – discussion about particular roles of court and legislature. (1) We do not want courts to make broad policy decisions (this is what legislature should do). (2) We do not want legislatures to make decisions based on individual case or controversy (this is what courts should do).

41

b.

To prevent potential short-sightedness by legislature: 1) Do not want legislature to react to past events, try to just fix them – thus, we have prohibitions on ex post facto and bills of attainder. 2) Do not want legislatures to focus on individuals (this is what courts are supposed to do). 3) The rule that statutes are applied prospectively ensures protection of same things that prohibitions against ex pose facto and bill of attainder protect. 4) Legislative rule against dead hand control: Congress cannot be held to acts of past Congresses.

3.

Jawish v. Morlet Chronology:

1918 Statute enacted

1923 CT declares statute unconst’l

1937 CT overrules its 1923 decision

1940 AG declares statute enforceable

1952 Jawish case

a. b. c.

Issue: is this law still valid? Held: it is valid b/c 1937 decision nullified Reason: 1) What this case tells us about functioning of judicial decisions – see above. a) Rule: a law once declared unconstitutional and later held to be constitutional does not require re-enactment by the legislature in order to restore its operative force . . . .- p636. b) Rationale: statute was in unenforceable, inoperative, dormant state, not void (waiting to be revived). c) Why is there a difference b/w when CT declares statute invalid (statute just goes into inoperative/unenforceable state) and when CT declares CT decision invalid (earlier CT decision disappears). (1) One branch cannot completely eliminate the work of another branch. (a) Only legislature can repeal its own statutes (thus, CT decision declaring statute unconst’l merely makes statute inoperative/unenforceable, not void). (b) Only CT can void its previous judge made law decisions.
2)

??? What this case tells us about seemingly quasi-retroactivity application of a statute. a) ??? If 1923 CT decision never happened, then can we hold people liable who violated the statute b/w 1923 and 1937? (1) NO – b/c it is unfair, no notice (2) YES – b/c there is no vested right to do wrong (a) But this rests on premise that the action is “wrong”: “wrong” according to who?

42

of prospective and retrospective application but about trying to do justice. b) Where you come down on retro or prospectivity of statutes has more to do with your view of institutional legal architecture: (1) These are about choices – for example: (a) If argue Legislative policy judgments are supreme and (b) But judicial review trumps legislative decisions up to a certain point.
d.

(b) Shows how these decisions are not so much about abstract discussions

Notes: 1) This case operates on 2 levels: a) What this case tells us about functioning of judicial decisions – see above. b) What this case tells us about seemingly quasi-retroactive application of a statute.

4.

Case – Landgraf v. USI Film Products (US 1994) – Stevens – p642:
a.

Issue: 1) Did congress intend to make s102 apply retroactively? 2) Issue is NOT whether due process would be violated if this did apply retroactively. Held: No, Congress did NOT intend s102 to apply retroactively b/c of presumption of statutory prospectivity Reason:
1)

b.

c.

Compare Stevens’ definition of “retroactive application” to Scalia’s: a) Scalia: any law that applies to conduct that occurred before statute was enacted. b) Stevens: any law that attaches new consequences to conduct that occurred before statute was enacted. 4 Exceptions that overcome presumption of statutory prospectivity: a) A clear stmt by Congress saying statute applies retroactively. (1) This is what Scalia wants – he would limit exceptions to this one category a strict formal definition of retroactivity. b) Emergency/exigent circumstances c) ??? Substance/Procedure Distinction : less problematic to apply a statutory policy retroactively if it effects procedure than if it effects substantive rights. (1) Procedural requirements of a statute can apply retroactively (2) Substantive requirements cannot. (3) This will be problematic b/c hard to distinguish b/w d) ??? Provision that only affects injunctive (prospective) relief, then ok to apply retroactively. RULE Applied: a) Punitive damages cannot apply retroactively b/c potential constitutional problems (cannon of constitutional doubt) b) Jury trial could apply retroactively but attached to other stuff in s102 – cannot be separated from other stuff that cannot be applied retroactively. c) Compensatory damages: tough question but CT says cannot apply retroactively b/c . . .

2)

3)

43

(1) Argmts on Both Sides: (2) How one defines retroactivity will determine when and what type of

retroactivity one will allow (a) Notice of what? (b) ??? Example:
4)

Clever Argmts About Legislative History: a) CT seems to be relying on existences of legislative deal-making: Earlier version of this bill that contained explicit retroactivity provision and Bush vetoed it b/c of retro provision and Congress could not override – this suggests that Congress might have left retroactivity b) HYPO - what if Congress explicitly said in statute that CT will determine whether this should apply retroactively: (1) Should CT follow its general presumption? (a) Argmt that presumption of statutory prospectivity should apply: Congress knows the CT’s presumption, relies on it. (b) Argmt that presumption of statutory prospectivity should not apply: Congress left this decision to CT – start with clean slate c) Who should be doing the work – theme in statutory interpretation?

44

V. THEORIES OF STATUTORY INTERPRETATION A. OCTOBER 23, 2001 - DEDUCTIVE INTERPRETIVE THEORIES (P669-699):

1.

Summary:

See p669
2.

Initial State Was One of Eclecticism What Do We Mean By “Statutory Interpretation”?:
a. b.

3.

Many definitions. Complications exist on many levels
1)

There is always fundamental problem w/ relationship b/w author of text and reader. a) Give meaning to words chosen by legislature; OR b) Discern/uncover the meaning of words chosen by legislature. Context of interpretation will constrain how you do it: a) Example: fact that courts only do statutory interpretation in the context of case will always constrain the courts’ interpretative process (this is different from what we are doing in this class). Constitutional and Institutional Dynamics:
a)

2)

3)

It is CLEAR that Constitution says the Legislature makes the law and court interprets it interpreting statutes

b) It is UNCLEAR what the proper roles of these 2 institutions are when

c)

Big Theme - whose view should count? Whose authority should count when we are interpreting a statute? (1) The enacting legislature (2) The court: (a) Does the court’s independent opinion/view of what the statute means (or should mean) count? (b) Can it trump the legislature’s view?

d) What is effect of changed circumstances on statutory interpretation? 4)

Empirical Problems a) How good is the evidence?

45

c.

Each theory has a “give” – wiggle room.

4.

Textualism:
a.

Definition: 1) “words mean what they say they mean” 2) Evidence: text 3) Most closed of three approaches Textual Canons: 1) Canons are attempt to overcome problems of textualism. 2) Help create understanding b/w legislatures and courts (“If we, the legislature, do this, the courts will read it that way”). Benefits: 1) Prevents judges from putting moral stamp on things Criticism 1) The give = semantics. 2) Can become a shield for moral imposition 3) Legislative drafting process has enormous effect on meaning of words – it is imperfect process – often each word is bartered over and often words are used without thinking through the meaning - words do not mean what they say they mean.

b.

c.

d.

5.

Intentionalism:
a.

Definition 1) Focus on original intent of enacting legislature regarding the specific words of the statute - what did enacting legislature intend for the statute to mean? 2) Evidence: text and legislative history Criticism: 1) The give = choice of evidence: result can be manipulated based on evidence that court chooses to rely on. Compare to Textualism: 1) Difference Based on Sources of Evidence: a) Textualist will only look to one source of evidence as to meaning – the words of the statute – what do those words mean to me or what did they mean in 1789, etc. b) Intentionalist will look to multiple sources of evidence as to meaning – the words, the legis history, etc – a more complete and reliable picture of intent of enacting legislature – might go against natural, common meaning of word if there is evidence that legislature meant something different by using this word. Compare to Purposivism: 1) 2 Different Inquiries:

b.

c.

d.

46

Intentionalism - specific intent: what did enacting legislature intend for the words of the statute to mean? b) Purposivism - general intent: what did enacting legislature want to accomplish? What was policy goal? 2) Purposivism is more deductive 3) Purposivism can tease out some fundamental ambiguities
a) 6.

Purposivism:
a.

Definition: 1) This is truest approach to determine what enacting legislature was doing. 2) Evidence: anything 3) Most open-ended of three approaches Criticism: 1) The give = level of abstraction:

b.

7.

Case – Holy Trinity Church v. US (US 1892) – Brewer – p675:
a. b. c.

Facts: granddaddy of all statutory interpretation cases. Held: no violation of anti-immigration federal statute Reason: 1) Spirit and Letter Stmt: Brewer departs from pure textualist approach b/c “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit [purposivism], nor within the intention of its makers [intentionalism].” 2) Brewer says the church wins under all three approaches. Textualist Approach: 1) Textual Argmt: win on the text anyway b/c “labor” only means manual labor, not genteel, professional activities, like sermons. a) Critic: but next two words of statute say “or services” – Brewer just ignores this. Intentionalism Approach: 1) Legislative History - Brewer says legislature wanted to put “manual” as qualifier in front of “labor” but ran out of time in the drafting process. a) Critic – double-edged sword: (1) Affirmative implications of Congress’ failure to make the amendment shows that maybe Congress did not think this was important or that Congress made legislative deal (not to include this): (a) Court cannot read into a statute an amendment that did not pass b/c amendment did not pass for political reasons. (2) Thus, this supports govt’s argmt. 2) Mischief Approach: intentionalist can use mischief approach to say words mean this. Purposivism Approach:

d.

e.

f.

47

Purposivism can use mischief approach to say goal of statute was ____. a) Brewer uses mischief approach: this is evil that Congress was trying to eradicate. 2) “We are Christian nation”: our nation has an overriding public policy that makes it implausible and improper [absurd result] for CT to read statute as applying to minister: a) Criticism: (1) Do we want CT doing this (saying that Congress made a mistake)? (2) Criticism: purposivism is only as valid as purpose that judge asserts on behalf of it.
1) g.

Criticisms of Brewer’s Approach: 1) Pure judicial subjectivity. 2) Assume Brewer’s policy assumptions were correct, was CT right to reach the result he did or do we still not want CT to be correcting legislature’s mistakes. Notes: 1) As atty, I should always try to meet all three. 2) Legislative canons of construction: we will get to these later. 3) Substantive canons of construction: we will discuss in more details later. a) Where possible courts should not interpret statute to violate Constitution. b) Where possible courts should construe statute so that CT does not have to reach Constitutional issues.

h.

48

B. OCTOBER 25, 2001 - IMPLICATIONS OF AND DEBATES WITHIN LEGAL PROCESS THEORY

(P699-727):
1.

Summary - Legal Process Interpretation
a.

Basic Tenets 1) Purposive Approach )text subordinate) 2) Deference to Legislature as Reasonable Policy Maker 3) Justice Matters 4) Imaginative Reconstruction and Extrinsic Evidence of Purpose Circumstances/Problems 1) Legislative Errors - Do we want CT to be correcting legislature’s mistakes? 2) Changed Circumstances 3) Conformity with Social Norms

b.

2.

Review:
a.

Today we will discuss extension of purposivist interpretation – lead to legal process interpretation Legal process = outgrowth of legal realism (political and subjective inputs into judicial law making as well) – effort to say formalism is wrong but let’s try to understand law and lawmaking in some way that we can believe in it. What is legal process interpretation try to use broad array of insights to create a nuanced account of how the law is principled while acknowledge that judicial process has subjective and political inputs.

b.

c.

3.

Basic Tenets of Legal Process/Purposivism Approach to Interpretation:
a.

Purposive Approach (text subordinate) to Interpretation: 1) First consideration: figure out purpose, policy goal of enacting legislature 2) Secondary considerations: text is anchor – here is how interpretation we are adopting squares with the text. 3) Concept: can be within letter but not within spirit. Deference to Legislature as Reasonable Policy Maker
1)

b.

We know legislature is up to politics, but we are going to assume that legislature wants to and is trying to make reasonable policies: a) Legal process theory rejects formalist view ( that legislature should not be trusted and thus, construe a statute narrowly). b) Use this to justify departures from text when it appears that ordinary reading of text is not reasonable). This is NOT just “deference” – only deference to reasonableness of legislature.

2)

49

3)

To what extent should courts be in business of fixing problems/mistakes with legislation – 2 views: a) Legal process interpretation says courts can make this fixes, reasonably (assumes partnership b/w courts and legislatures. b) Textualist and Formalists: Legislature do what legislatures do and courts do what courts do – if legislature fails to do so, court should just strike it down and then court can amend it. This “deference” is suppose to exclude judicial assertion of most optimal result: courts should not be allowed to do this b/c legislature already made this policy decision. Problem: reasonable is very malleable idea.

4)

5) c.

Justice Matters 1) Law is supposed to be just. 2) But this does not devolve to applications of individual sense of justice. Imaginative Reconstruction and Extrinsic Evidence of Purpose 1) 2 elements that go into search for purpose: a) Imaginative Reconstruction: we do not have concrete traceable evidence of legislative purpose, but try to put ourselves in position of Legislator who is confronted with problem at the time statute was enacted. b) Extrinsic Evidence of Purpose: (1) Text (2) Legislative history (3) Historical context of events

d.

4.

Applying Tenets to the Hypo:
a.

Hypo 1) see old exam 2) Voting Accuracy Act says that no punch card voting system shall be used - defines “punch card voting.” 3) House committee report says pass statute to concerned about accuracy of reporting votes. 4) Inventor develops laser card system in 2007: 5) Studies demonstrate that this is by far most accurate system of voting tabulation that has ever been developed Does laser card system violate VAA of 2001? Textualist Interpretation: 1) Best implication: VAA says no punching wholes in cards. 2) Could argue that it is not punching, but burning. Legal Process Interpretation: 1) Basic Tenets: a) Purposivist approach (text is subordinate): it would be odd to prevent this system (which serves purpose of VAA).

b. c.

d.

50

b) Deference to legislature as reasonable policymaker c) Justice matters: accurate accounting of votes is just thing to do here. d) Extrinsic purpose: (1) Argue that we, as interpreters, know historical context of why Congress

passed this – to ensure accuracy – thus, the laser method meets this goal.
e.

How much should title of statute influence textualist interpretation or any interpretation?

5.

Case - US v. Locke (US 1985) – p705:
a.

Held: language that “prior to December 31” means before, not on December 31 of each year. Reason: 1) Example of strict textualist approach with SOP concerns. 2) Deadlines are inherently arbitrary – thus we defer to legislature – institutional consideration. 3) Distinguish b/w filling a gap left by Congress’ silence (CT can do this) and redrafting rule that Congress has affirmatively and specifically enacted (CT cannot do this. Dissent: 1) Use legal process interpretation approach – tenet #2 (deference to legislature as reasonable policymaker): this not reasonable. Discussion – is this decision right? 1) Isn’t this just a mistake – thus, the court should be able to fix it. 2) Date setting is distinctly a function of legislature – institutional competence - courts cannot go around changing deadlines b/c they are “unjust.” 3) ACG comment: a) Marshall as textualist? I think this is example of Marshall setting himself up for later cases – making power grab for CT to fill gaps in later statutes. b) Result oriented choice of interpretation technique: judges just use these theories to get the result they want – are not consistently a textualist. c) Textualist like Scalia look at historical context and understanding of statute but isn’t this a legal process? d) How are textualist different than strict constructionist/originalist?

b.

c.

d.

6.

Women’s Suffrage Cases – p718:
a.

Ideological Instincts are Flip-flopped: 1) If follow textualist, women get right to vote. 2) If follow legal process interpretation, then women do not get right to vote.

51

b.

Compare this to problem of adoption case.

7.

Circumstances/Problems
a. b. c.

Legislative Errors: do we want CT to be correcting legislature’s mistakes? Changed Circumstances Conformity with Social Norms

8.

Compare Legal Process/Purposivism Approach WITH New Textualism Approach to Interpretation:
a.

Purposive interpretation does not entail a rejection of the text – more of a stretching of the text.

52

C. OCTOBER 30, 2001 - THE NEW TEXTUALISM (P742-43, 755-783):

1.

Summary: TEXTUALISM Magarian used this little example to show how just focusing on the word is not always clear – a subtle critique of textualism. b. When we criticize this approach, go deeper than usual, easy criticisms. c. New Textualism is current trend – Scalia and Easterbrook.
a.

2.

Scalia – A Matter of Interpretation (1997) – p755:
a.

Scalia says textualism is a matter of reasonable interpretation. 1) Textualism is neither be restrictive reading of words nor be nihilism. Scalia says textualism is NOT result-oriented. 1) Says textualism is an “honest reading of words” – this is his response to criticism of textualism (use textualism as device to impose their moral values/wills on case). Scalia adamantly refuses to consider legislative history 1) Government of laws, not of men: legislative intent is irrelevant – only what law says matters. 2) Objections to use of legislative history – unwise and unconstitutional: a) Unconstitutional – p756-57: (1) Allows judges to usurp authority of legislative (we do not want judges stealing legislators’ authority). (2) Unconstitutional b/c involves usurpation of authority within legislature itself: committee reports are not representative of Congress – cannot give them more weight than text of law. b) Unwise: (1) Legislative history is unreliable as evidence – p756. What would Scalia do with agency interpretations of its regulations? 1) Seems to be okay with this b/c delegation by Congress to agency is ok.

b.

c.

d.

3.

Case – Chisom v. Roemer (US 1991) – Stevens – p758:
a. b.

Facts: s2 of VRA has been amended – how to interpret Issue: 1) Whether s2 of VRA applies to judicial elections? 2) What does “representative” mean? Held: judges fall within meaning of “representatives.” Reason – Stevens – judge is within meaning of “representative”:

c. d.

53

1) 2) 3)

Legal Process approach + smorgasbord of other interpretive theories. Absurd result if we did not include judges within VRA. Fact that Congress changed “legislators” to “representatives” shows congress intended “representative” to be broader, more encompassing scope: a) Congress borrowed this language and changed only one word – changed “legislators” to “representatives” Distinction b/w “candidate” and representative”. Significance of amendment of statute a) Stevens argmt: (1) Old (pre-amendment) statute did cover judicial elections (2) New (post-amendment) statute meant to expand protection of statute (to subject matter A). (3) Thus, it would be illogical if it did not still cover judges (to conclude that subject matter A was removed from statute). b) Scalia’s response: (1) Says Stevens is being overly simplistic (a) There are two issues:  What types of elections are covered?  What degree of protection that statute provides? (b) Thus, it is reasonable to conclude that as a tradeoff for expanding degree of protection, Congress limited the types of elections that are covered. (2) Problem with Scalia’s argmt is that they he needs evidence that Congress narrowed the statute – where can he get that evidence ? Legislative history.

4) 5)

e.

Scalia Dissent – strict textualist – judge is NOT within meaning of “representative”:
1)

If Congress wanted to include judges, Congress could have used the word “candidate”. “Representatives” represent the people: judges do work of state, not work of people.
a)

2)

Counter 1: representative is natural consequence of an election. (1) Scalia Counter: baseball all-star game are elected but they are not representatives - it is not intuitive that anybody who is elected is a representative. (a) Mag Counter: says sports casters use term representative all the time – represent the team.

b) Counter 2: this is not a textualist argmt: (1) Where does textualist interpretation end and something non(2) Is pure textualism possible? (a) Meaning is dramatically influenced by culture and social consequences

textualist begin?

– cultural linguists.

54

(b) Who gets to decide what is “ordinary meaning”? Who gets to decide

what dictionary to use (Scalia used 1950 dictionary)?

(c) When we are trying to interpret words - are we trying to discern what

they mean now and what they meant at time of enactment?

do? Any that is why we use textualism – it is more practical and efficient.  Goes back to key question – what is role of each branch of government?  Have to agree on what sources are reliable. (3) Some argue there is no real difference b/w textualism and intentionalism – there is much sharper contrast b/w textualism and purposivism.
4.

(d) Is point of an interpretative theory to limit the harm that judges can

Case – US v. Marshall (CA7 2000) – Easterbrook – p773:
a. b. c. d.

Facts: mandatory min sentencing guideline for LSD possession. Issue: is blotter paper = “mixture or substance” or is blotter paper merely a carrier? Held: yes Reason - Easterbrook: 1) If there was expert testimony in record, he would look to this. Posner dissent: 1) Congress did not know what it was doing – made a mistake – Congress did not know what it was talking about 2) Court can correct mistakes. 3) Scalia says it is ok for Court to fix “scribners’ error” – does this fall under “scribners’ error”? Another problem – hard to tell line b/w scribners’ error and reasonable disagreement in judgment. Notes: even though both are legal process theorists, this case is mostly about textualism.

e.

f.

55

D. NOVEMBER 1, 2001 - ECONOMIC AND CRITICAL THEORIES OF INTERPRETATION (P727-

29, 784-89, 800-816):
1.

Summary
a.

Deductive Theories 1) Textualism 2) Intentionalism 3) Purposivism – legal process Dynamic Theories 1) Law & Economics 2) Pragmatic/Practical Reason 3) Critical (race, gender, class) Questions for Each Theory 1) Does dynamic theory subordinate the judge’s subjectivity to the popular will? 2) Does dynamic theory give us better evidence of popular will than the evidence provided by deductive/originalist theories?

b.

c.

2.

Deductive Theories as Compared to Dynamic Theories:
a.

Different Evidence: Deductive based on some written original meaning source – dynamic interpretation NOT based on some original written source – rather, based on authority of sovereign people – does not think original written sources are reliable indicators of will of people. Dynamic theories do not show up in judicial opinions. Useful b/c provide productive contrast and context for thinking of deductive theories – examine assumptions underlying deductive theories. Legal Process Deductive Interpretation is distinguished from dynamic theories b/c it has to reconcile itself with the text. Other Thoughts: 1) 2 things we want a theory of interpretation to do: a) We want theory of interpretation to constrain judicial subjectivity: (1) Even within deductive theories (and textualism), judges can impose values and subjectivity. (2) We are wary of dynamic theories b/c they do not constrain judicial subjectivity. b) We want theory of interpretation to reinforce the institutional roles of the government system. (1) How accurate is this assumption (that legislative will is reflective of what the people want – theories of representation discussion). (2) Dynamic theories challenge this assumption – say there are sources that are more accurate in enforcing the will of the people than legislative comments.

b. c.

d.

e.

56

(3) Thus, we are wary of dynamic theories b/c not rooted in legislative

authority.

f.

Dynamic theorists have few expectations: want judges to actually use dynamic theories and then use the deductive theories (b/c more accepted) to reach same result. Aren’t all these theories useless? 1) Judges when they read a case have a set outcome in mind and then use whatever theory gets them the outcome that they want. 2) Magarian says we need the theories to give credibility and legitimacy – cannot act in an “unprincipled” manner. Common attacks on each theory: 1) Does this branch have proper constitutional authority/power to do this? 2) Is this branch institutional competent?

g.

h.

3.

Law & Economics as Dynamic Theory:
a.

Definition: 1) Efficiency: if something is efficient, it cannot be illegal. 2) Judges should take different approaches depending upon whether they are interpreting a Private or Public Interested Legislation a) Public Interest Legislation (“good” statute): construe broadly. b) Private Interest Legislation (“bad” statute): construe narrowly. How is this a criticism of deductive theories? 1) Not looking at any written original source. 2) Wants courts to take a critical, independent view of what legislature is doing. What is useful about this approach? What is wrong with this approach? 1) Too subjective & too very value-laden. a) Counter: Does dynamic theory subordinate the judge’s subjectivity to the popular will? Does dynamic theory give us better evidence of popular will than the evidence provided by deductive/originalist theories?

b.

c. d.

e. f.

4.

Pragmatic/Practical Reason:
a.

Definition 1) Close cousin of legal process interpretation

57

2) 3)

Cannot reconcile the right answer with the text. Rests on notion that judges, in some circumstances, are just in a position to fix something and they should do so. a) No overriding principle of efficiency or justice.

b. c. d. e.

How is this a criticism of deductive theories What is useful about this approach? What is wrong with this approach? Bilious Oxide Hypo 1) Facts: a) Company creates bilious oxide which is toxic to all humans. b) 1960: govt passes statute banning all use of bilious oxide. c) 1970: govt dumps cure-all anecdote into public water system. d) 1990: company discovers way to use bilious oxide to dramatically improve widget process. Govt brings case against company. 2) Reason: a) Could try to use purposivist theory. b) Dynamic theories: (1) Economic theory – argmts on both sides: (a) Law & economic theory says that things that are efficient should not be illegal – thus, company wins. (b) This is public purpose law which courts should broadly interpret and we have private interest asking for it to be interpreted narrowly – thus, company loses. (2) Pragmatic theory: the toxicity of substance is moot. See p 800-811 Does dynamic theory subordinate the judge’s subjectivity to the popular will? Does dynamic theory give us better evidence of popular will than the evidence provided by deductive/originalist theories?

f. g. h.

5.

Critical Theories (race, gender, class):
a.

Definition: 1) Whether and to what extent considerations of social justice (race, gender, etc.) can inform judicial interpretations. 2) 3 insights about interpretation – p812: a) laws are not “neutral” or “universal” b/c they do not take into account the possible effect of a law or an interpretation on women or racial minorities. b) Challenges whether legal premises are neutral – suggests they reflect a partial viewpoint. c) Urge that law be more “conceptualized” – focus more on particular facts and less on universal principles. How is this a criticism of deductive theories?

b.

58

c. d. e.

What is useful about this approach? What is wrong with this approach? No Old Cars Statute Hypo 1) Facts: In 1940, white legislature passes no old cars statute (to keep black people off street). In 1990, Fred Smith, a white man, is driving and is pulled over by Policeman X (and Fred owes X $), police arrests him under no old cars statute. 2) Reason: Does dynamic theory subordinate the judge’s subjectivity to the popular will? Does dynamic theory give us better evidence of popular will than the evidence provided by deductive/originalist theories?

f. g.

59

VI. DOCTRINES OF STATUTORY INTERPRETATION

A. NOVEMBER 6, 2001 - INTRODUCTION TO THE CANONS OF CONSTRUCTION: TEXTUAL

CANONS (P817-848):
1.

Summary
a.

Where we have been? 1) We first discussed Deductive Theories 2) We then discussed Dynamic Theories 3) Today – we are back to deductive theories and specifically into textualism 4) Today we will talk about textual canons 5) Thursday we will talk about non-textual canons. 6) Use this discussion to re-examine whether I think textualism is a good theory. Usefulness of Textual Canons: highly useful b/c are in actual use today. Purpose Underlying Textual Canons: 1) Purpose of creating canons of statutory construction is to create a language that both the legislature and the judiciary recognize and act upon. a) Hope is that the existence of the canons will affect the way that legislation is written/drafted (by the legislature) and interpreted (by the judiciary). 2) Criticism: assess how effectively this purpose and presumption are met – do they accurately reflect the legislative drafting process. Textual Canons 1) Canons of Word Meaning and Construction 2) Grammar Canons (highlights) 3) Whole Act Rule Is there a Hierarchy of Canons? 1) Look at whole act rule first. 2) Probably take into consideration more broadly applicable canons. 3) Does CT prefer one over others or has it indicated a preference for one over another? No. Problems with textual canons 1) Fail to Reflect Realities of Legis Drafting and Enacting Process 2) Malleable: are they more or less malleable than other theories 3) Canons Bump Against Each other Lesson: once we have all these tools, able to make persuasive arguments.

b. c.

d.

e.

f.

g.

2.

Canons of Word Meaning and Construction:

60

a.

Ordinary Meaning – p821: 1) Definition: a) If you have to chose b/w common meaning and scientific meaning, you should not apply technical or special meaning unless context calls for that. b) See Nix v. Heedon. 2) Problems: a) “Ordinary” according to whom b) General problems with textualist theory Noscitur a Sociis – p822: 1) Definition: a) “Word is known by the company it keeps.” b) When you have a list with general and specific terms, the specific words limit and qualify the scope of the general terms. 2) Problems: a) Fails to reflect the realities and complexities of legis drafting process: (1) not rational to presume legis acts in unitary way. ??? Ejusadem Generis – p823: 1) Definition: a) ??? Where general words follow specific words in a statutory enumeration – get full quote from p824. b) Read specific terms to limit scope of list and read general term to bring in things that fall within that scope. c) How is this different from noscitur a sociis: end up with broader coverage under ejusadem generis than you would get under noscitur a sociis. 2) Purpose: give effect to all words 3) Problems: Expresio Unis 1) Definition: negative implication - inclusion of one thing indicates exclusion of the other. 2) Problem: a) Fails to reflect the realities and complexities of legis drafting process (1) Legislature sometimes has intentional ambiguity as part of a deal – legislators agree to leave resolution of issue to courts – this rule says legis has to figure these things out. b) Expresio unis not work well when there is a general term: works best when the list only has specific terms. Hypo: 1) Facts: Navigation statute – juris over coastal waters of Atlantic and Pacific Ocean and the waterways, lakes and streams of US 2) Issue: Does this include Mississippi River? How to interpret waterways? 3) Reason a) Remember this is just textualism – not looking at purposivism or intentionalism b) Under noscitur, waterway would be limited to things like lakes and streams c) Under ejusadem, read specific terms to limit scope of statute (limited to things b/w coastal waters and lakes and streams) and read general term to bring in things that fall within that scope (rivers falls within these extremes). 4) Problem: canons are as malleable as non-textualism theories.

b.

c.

d.

e.

61

3.

Grammar Canons (highlights):
a.

Punctuation Counts – p826: 1) Definition: a) Do not follow punctuation when it leads to an absurd result. b) Plain meaning trumps punctuation. c) Last resort. d) Get more info. 2) Problems: Last Antecedent Rules – p826: 1) Definition: a) May be a narrowing principle. b) Get more info 2) Problems Conjunctive v. Disjunctive: ??? Others

b.

c. d.

4.

Whole Act Rule – p830-36:
a. b. c.

This is most important, top one on hierarchy of textual canons General Definition: Titles and Preambles May Resolve Ambiguities – p831: 1) Definition: a) Titles and preambles can be looked at not supposed to supersede plain meaning or whole meaning of statute. 2) Problems: Read Provisos Narrowly – p832: 1) Definition: a) Proviso modifies the last thing b) Presumption in favor of primary statutory term over proviso term – assumes key action is in the primary terms – reflects a very specific choice about how to read statutes. 2) Problems: a) The key action is in the proviso – the exceptions are sometimes the meat of the statute. Avoid Surplusage – p833: 1) Definition: a) Construe ambiguous term so that it does not render some other term in statute meaningless or redundant. 2) Problem: a) Fails to reflect realities and complexities of legis drafting process. b) Runs up against other canons (i.e., ejusadem, nositur). 3) Hypo:

d.

e.

62

a)

Statute regulates “vehicles, automobiles, trains and bicycles.” Does it cover airplanes? Can argue yes b/c it is part of vehicles.

f.

Presumption of Consistent Usage – p833: 1) Definition: 2) Problem Presumption Against Negation – p835: 1) Definition a) Resolve contradictions in way that harmonizes whole statute. 2) Problems

g.

5.

Case – Babbit v. Sweet Home Chapter of Communities for a Great Oregon (US 1995) – Stevens – p836:

READ THIS OPINION TO REVIEW
a.

Facts 1) Text of statute: take means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.” 2) Agency interpretation of “harm”: includes adverse habitat modification. a) Chevron oil rule: agency interpretations of statutes should be given substantial difference if . . . . (learn about it later). Held: agency’s interpretation of harm was reasonable - harm can be interpreted directly or indirectly. Reason:
1)

b.

c.

Uses ordinary meaning to show that “harm” applies to both direct and indirect harm. a) Ordinary meaning of “harm” includes both direct and indirect harm Uses presumption against surplusage to show that “harm” applies to both direct and indirect harm a) If you limit harm to direct injuries, then harm has no meaning b/c all the other terms (harass, pursue, hunt, shoot, wound, kill, trap, capture or collect.) are direct ways of harming animals. b) Stevens says “I cannot think of any other words. . . .”

2)

d.

Scalia Dissent
1)

Uses nositur a sociis to show that “harm” should be limited to direct harm. a) b/c this would put it out of all proportion to other terms in the list. Scalia’s response to Steven’s presumption against surplusage argmt: a) Scalia says “I can think of something else that is a direct injury that does not fall under other words” – examples draining a pond. (1) Response: (a) That is not direct (b) That falls under “harass”

2)

63

e.

Notes: this case shows presumption against surplusage bumps up against nositur a sociis

64

B. NOVEMBER 8, 2001 - SUBSTANTIVE CANONS: THE RULE OF LENITY (P848-69):

1.

Summary:
a.

Substantive Canons Generally: 1) Presumptions about legislative intent. 2) Institutional communication b/w branches (ask whether this works in practice). 3) Canons raise questions re: institutional competence. 4) Canons are not substantive law - do not prohibit Congress from doing anything (even though Congress can do this, Court will not presume that Congress did this). Examples of Substantive Canons: 1) Not Abrogate State Sovereignty 2) Construe CR & Antitrust Statutes Broadly 3) Public Grants Narrowly 4) Tax Laws in Favor of Taxpayer 5) Not Violate International Law 6) Provide for Judicial Review – Create Remedy 7) Not Abridge Other Branches’ Power 8) Not Violate Constitution 9) Rule of Lenity

b.

2.

Not Abrogate State Sovereignty:
a.

Definition: Congress not intend to abrogate state rights any more than it clearly states that it is doing - Discuss next class Problems:

b.

3.

Construe Civil Rights & Antitrust Statutes Broadly:
a. b. c.

Definition: Rationale: B/c reflect policy choices. Problems:

4.

Public Grants Narrowly:
a.

Definition: presumption that where govt is granting money courts will construe public grants statutes to favor the government, as grantor. Problems:

b.

5.

???Native Americans:

65

a. b.

Definition: Problems:

6.

Tax Laws in Favor of Taxpayer:
a.

Definition: presumption that where govt is taking money courts will construe tax statutes against govt and in favor of taxpayer. Problems:

b.

7.

Not Violate International Law:
a. b.

Definition: presumption that Congress does not intend to violate international law. Problems:

8.

Provide for Judicial Review – Create Remedy:
a.

Definition: presumption that Congress intends to allow for judicial and to create a remedy. Problems:

b.

9.

Not Abridge Other Branches’ Power:
a. b.

Definition: presumption that Congress does not intend abridge other branches’ power. Problems:

10. Not Violate Constitution – Canon of Constitutional Doubt: a.

Definition: presumption that Congress does not intend to violate the Constitution and thus, courts should construe statutes, if possible, so as not to violate constitution. Problems:

b.

11. Rule of Lenity – p850:

Very important to know this rule – go through reading.
a.

Definition: presumption that criminal statutes are not intended to apply more broadly than they are made clear. Rationale 1) Based on notice principle

b.

66

Do not want courts creating criminal liability or criminal punishment – these reflect community judgments and have to be reflected clearly. 3) Compare Breyer and Ginsberg opinions re: how to characterize rule of lenity in Muscarello.
2) c.

Problems:

12. Is this a Good Way for the Court to Do Business? a.

Where do these canons get their legitimacy or authority?
1) 2)

Mag saying there is no real authority or legitimacy for these rules. Based on constitutional norms: these are penumbras and emanations from constitutional rules. Tradition & Consensus: a) Problems: (1) Consensus may not be as strong as we presume it to be. (2) Courts can manipulate these canons to get results they want through sneak in their own normative, substantive judgments: (a) Assume legislatures acting politically and courts are acting in principled manner – but courts can use these canons to sneak in their own normative, substantive judgments.

3)

b.

How well do these substantive canons prevent substantive judicial policymaking? 1) In assessing this, keep in mind whether or not I am a critic or fan of substantive judicial policy-making. Whose power do these substantive canons increase? The legislature or the courts?
1)

c.

Argmt that the substantive canons increase LEGISLATIVE power: a) Canons = alternative to invalidating statutes b) Courts, through canons, give legislature the benefit of the doubt – a lot of credit. Argmt that the substantive canons increase JUDICIAL power: a) Lets courts manipulate canons to say they are just interpreting when they are really redrafting, thus legislating. b) Sometimes slide into gray area and are taken as substantive law.

2)

d.

Are there ANY checks on these substantive canons? 1) Mag trying to show that there is no real check: 2) Example: what happens if Congress passes a statute that says from hereon, courts should construe ambiguities in civil rights statutes narrowly – eventually you will always run out of clarity: 3) Is it more of a cop-out for Congress to admit statute is ambiguous than to remain silent on question of ambiguity? 4) Can court say this goes beyond Congress ability to limit the juris of federal courts?

67

13. Case – Muscarello v. US (US 1998) – Breyer – p854:

READ THIS
a.

Facts: 1) Mandatory 5 year increase if D “uses or carries” a firearm during drug deal in way defined by this statute. Issue: was D here “carrying” the firearm? Held: YES – D here was “carrying” the firearm – broad interpretation. Reason - Breyer, Stevens, O’Connor, Kennedy, Thomas:
1)

b. c. d.

Textualist Argmt: a) The meaning is unambiguous – thus, we do not need to use the rule of lenity or the substantive canons.

e.

Dissent – Ginsburg, CJ Rehnquist, Scalia, Souter: 1) Adopts intentionalism argmt. 2) Dissent says this term is ambiguous, thus we have to apply the rule of lenity. 3) ??? Why is Scalia on intentionalism side? Notes: 1) Nice illustration of competing substantive canons. 2) Really Odd Justice Lineup: this case may suggest that Justices sign onto use of canons b/c they really believe in them, rather than used for political means. 3) The better argmt for the majority was its purposive argmt. a) But for strategic reasons, Breyer had to use textualist argmt. 4) This cases forces us to ask – what do we mean by “ambiguity”?

f.

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C. NOVEMBER 13, 2001 - QUASI-CONSTITUTIONAL LAW AND THE CANONS (P873-908):

1.

Summary – Constitutional Canon Problems:
a.

Overbreadth:

Insert diagram.
b.

Cover for Substantive Decision:
Force of judicial decision Cost of judicial decision

Apply statute as written

Construe statute narrowly

Strike down statute as unconstitutional

Increase in Force > Decrease in Cost ??? c.

Key questions: 1) Do these canons help? 2) Do these canons increase or decrease relative power of one branch over another? If yes, is this ok, necessary? Theme = paradox b/w way this limits judicial power but can also facilitate an increase in judicial power. 1) Always be very careful in our analysis about who is checking whom?

d.

2.

Canon of Constitutional Doubt:
a.

Rule: where possible, courts should construe statutes to avoid difficult constitutional questions. 1) Other definitions: a) Where a statute is susceptible of 2 constructions, courts should construe construction that avoids grave and doubtful constitutional questions. b) ??? Do we need to know different approaches to canon of constitutional doubt – p886? 2) When does the statute apply – what level of doubt is needed? 3) Result: CT avoids making a substantive constitutional decision Rationales:
1)

b.

Concerns about judicial power:

69

a) Designed to avoid excesses of judicial power. b) Constitutional decisions are especially potent: bound to extend their

influence into other undreamed of contexts – thus, we do not want courts to unnecessarily decide constitutional issues. c) Do not want courts issuing advisory opinions: do not want court to go beyond what it needs to do to decide the case. d) Court can strike statute down: invalidate an act of the legislature – this = height of judicial power – only want courts to do this when absolutely necessary.
2)

Courts will have to expend fairly significant institutional resources. a) Constitutional questions are by their nature analytically difficult

c.

PROBLEMS with canon of constitutional doubt – how can it be misused?
1)

CT Can Use Canon of Constitutional Doubt as Cover for Substantive Decision: a) See diagram above. b) See Justice White’s comments in Lowe v. SEC (US 1985) – p885 c) Idea: canon of constitutional doubt, which allegedly represents a constraint on judicial power, can be used to exercise/exert/extend judicial power. (1) Courts can use this canon rhetorically to pretend to be ratcheting down its power when in fact it still gets the result it wanted – distort perceptions. Overbreadth: a) See diagram above. b) Idea: in applying a severability clause or adopting a narrow construction, CT can strike down more of the statute than would be required by a strict substantive constitutional decision.

2)

d.

What happens in application of this canon when constitutional law has changed since enactment of the statute – p884. Case – NLRB v. Catholic Bishop of Chicago (US 1979) – CJ Burger – p874:
1) 2)

e.

Issue: whether Congress intended NLRA to apply to religious schools. Held: NLRA not apply to religious schools. a) “In absence of a clear expression of Congress’ intent to bring teachers in church-operated schools within the juris of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the 1A Religion Clauses.” Reason: a) Text seems to imply that NLRA would apply to religious schools: (1) Statute has broad juris provision – lists 8 exceptions and religious schools are not among the exceptions.
b) CT says LH indicates that NLRA does not apply to religious institutions: (1) B/c there was 1974 exemption for religious hospitals (but this was later

3)

repealed – CJ Burger gets around this by focus on 1979 amendment)

70

(2) B/c there was 1979 amendment that said employees of religious hospitals

do not have to join union.

4)

Brennan Dissent: a) Says this not proper case to apply constitutional doubt canon b/c (1) NLRA’s text; (2) NLRA’s legislative history; and (3) CT’s precedents. b) NLRA’s Text: majority’s read does not seem consistent with text (broad definition, specific exceptions). c) NLRA’s Legislative History: (1) Exemption for religious “hospitals” not schools. (2) Congress rejected religious school exemption. (3) Exemption for religious hospitals was repealed. d) CT Precedents: What Is Effect of What CT Did Here?
a)

5)

We have a more limited NLRA.

b) CT had 2 options: (1) Make a substantive constitutional decision: declare NLRA

unconstitutional as applied to religious institutions b/c it violates religious clauses; OR (2) Apply canon of constitutional doubt: thus, interpret statute narrowly to not apply to religious institutions. (3) Would there be any difference in practical effect? Mag says no.
6)

Why Would CT Do This?
a)

Is CT concerned about rights and circumstances of religious institutions? later and then CT will have to distinguish from a later case where they would not want to be tied to this precedent: (1) CT does not want to have to pay institutional cost (expend institutional capital, piss off Congress, cause people to lose faith in CT) by taking a substantive policy view and then having to distinguish it later.

b) If CT made a substantive constitutional decision here, it might backfire

7)

Notes: get notes from book

3.

Clear Statement Rule:
a.

Rule: If Congress intends to alter the usual constitutional balance b/w the States and the Federal Government, it must make its intention to do so unmistakably plain and clear in the language of the statute. 1) Tool of new textualism. 2) Rationale: used to avoid federalism problems. Case - Gregory v. Ashcroft (US 1991) – O’Connor – p889: 1) Held: ADEA does not cover judges. 2) Reason: a) Judges are inherently area where federal govt should defer to states.

b.

71

judges. Thus, applying clear stmt rule, ADEA not apply to judges. 3) White Concur: a) Wants to limit use of plain stmt rule to 11A cases. b) Says plain stmt rule places limit on Congress’ legislative authority and is counter-majoritarian and an intrusion on a co-equal branch of govt. c) Plain stmt rule puts to great a burden on Congress. d) Not clear what Congress has to do to comply with the plain stmt rule.
c) c.

b) There is no clear stmt by Congress in the statute that it intended to cover

Criticism: 1) Use of this canon is a substantive choice. 2) See White’s concur. 3) Canon does not even apply consistently – see Chisom v. Roemer - 901. Get notes from book

d.

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D. NOVEMBER 15, 2001 - LEGISLATIVE HISTORY - COMMITTEE REPORTS (P937-38, 947-79):

1.

Summary:
a.

4 Approaches to Use of LH: 1) White in Blanchard: freely use LH to find meaning behind ambiguous terms. 2) Lord Brown-Wilkinson in Pepper: use LH to determine what legislature meant to DO. 3) Easterbrook in Sinclair: use LH only to determine what legislature meant to SAY. 4) Scalia in Blanchard: do not use LH. Legislative History Only Comes Into Play When There is Clear or Arguable Textually Ambiguity or Blatant Inconsistency B/w Text and LH. Committee Reports 1) THEME: if LH is useful at all, then committee reports are most reliable a) Generally considered the most authoritative/reliable source of LH. b) Why? (1) B/c reflect thought and expertise (2) B/c express part of legislative process (3) B/c presumably they are the result of input from a fair # of members. 2) Purpose of committee reports a) Comes out of committee hearings on the bill. b) Supposed to be cheat sheet for House or Senate when they are voting on the bill.

b.

c.

2.

White in Blanchard: freely use LH to find meaning behind ambiguous terms:
a.

Issue in Blanchard v. Berferon (US 1989) – White – p949: is amount of reasonable attorneys fees to be capped by contingent fee arrangement b/w client and atty. Analytical Process: 1) White goes to committee report but the report does not directly answer his question but it does refer to a bunch of cases that address what role contingent fees have in this situation. 2) Report refers to Johnson (CA5 case) case – that case laid out 12 factors to consider in deciding to award reasonable fees – one of the factors is contingent fees. 3) But court in Johnson imposed a cap on reasonable fees based on presence of contingent fee arrangement. 4) Then Report says that 3 other district court cases “correctly applied” 12 factors and did not hold contingent fee arrangement was decisive. Based on this what can we infer: 1) Congress adopted Johnson 12-factors but also adopted more flexible use of those factors in district court cases. White also makes a purposivist argument to reach same result Criticism:

b.

c.

d. e.

73

1)

Criticism – could have gotten to same result thru other approaches: a) Textualist: suggest that contingent fee arrangements are not decisive. b) Purposivist: suggest that contingent fee arrangements are not decisive Justification for why White did it like this? a) Not comfortable with pure textualist approach – concern about subjectivity. b) Not comfortable with pure purposivist approach – no anchor - concern about subjectivity. c) White tried to find some anchor, some support to show this is not as loose as purposivist approach: to show Congress may have had this in mind and there is nothing that cuts the other way – creates either reality or impression of judicial objectivity.

2)

3.

??? Lord Brown-Wilkinson in Pepper: use LH to determine what legislature meant to DO - broader:
a. b.

England has moved from textualist (???) approach to purposivist approach. If you take a purposive approach, then have to allow consideration of LH – if you do not allow consideration of LH, then being unfair to legislature. These approaches show that one’s views on legislative process and one’s normative legal theory influence when and if LH should be used. Very important to understand different b/c Brown-Wilkinson and Easterbrook. Note that these arguments about what are not just arguments about evidence, there are underlying theoretical differences/views on legislative process and how courts and legislatures should work.

c.

d. e.

4.

Judge Easterbrook in Sinclair - use LH only to determine what legislature meant to SAY:
a.

Issue in In re Sinclair (CA7 1989) – Easterbrook - p957: what to do when text and LH conflict and are of relatively equal strength. Easterbrook’s Approach:
1)

b.

Different from Scalia: a) Scalia says courts cannot use LH at all within context of textualism. b) Easterbrook says you can use LH, in a limited sense, within context of textualism - does not say thou shall not ever use LH When Can LH be Used? a) LH can only be used to determine what legislature meant to SAY b) LH cannot be used to discern legislative intent or purpose. c) LH may help a court to discover but may not change the original meaning. Easterbrook’s Objections to Use of LH:

2)

3)

74

Legislative process point: if we allow LH to play strong rule in judicial interpretation of statutes, we are making it too easy for Congress – LH can be easily manipulated – members who cannot get the language they want into the bill, can get it into the LH. b) Does not want minorities (thru judicial interpretation) to be able to use LH to make an end run around veto gates: but veto gates are a tool of minorities c) Add these to Scalia’s objections.
a) c.

Criticism: 1) Could have gotten to this result using purposivism. 2) Could have gotten same result through whole act approach under textualism. 3) Open to subjectivity: how can you tell if court is using LH What do you do with staffer who snuck language in dead of night at behest of lobbyist? This case is like Holy Trinity.

d.

e.

5.

Scalia in Blanchard: do not use LH:
a.

Scalia’s objections to use of LH: 1) Constitutional Point: a) Legislative history is not enacted into law – so reliance on LH is improper, judges are not allowed to interpret or enforce committee reports – outside the scope of proper governance. b) COUNTER: 2) Evidence Reliability Point: a) If you are really trying to discern intent of legislatures, you are knocking on wrong door. (1) Committee Reports = phantom document, cannot be amended, not enacted into law, not voted on, not written or read by members of Congress. (2) See Dole-Armstrong debate – p953. b) COUNTER: members do not even read the bills.

6.

Lurking normative issue behind decision whether or not to use LH:
a.

Note that these arguments about what are not just arguments about evidence, there are underlying theoretical differences/views on legislative process and how courts and legislatures should work.

What are implications of these approaches on how legislative process does and should work? E. NOVEMBER 20, 2001 - LEGISLATIVE HISTORY: HEARINGS AND STATEMENTS (P979-1012):
b. 1.

Summary:
a.

Case - BankAmerica v. US (US 1983) – CJ Burger - p981:

75

1) 2) 3) 4) b.

Text (“other than banks”) – ambiguous. LH: hearing testimony (Brandeis) LH: floor debate (post-conference) Presumption favoring supporters’ statements.

Case - Montana Wilderness Assn v. USFS (CA9 1981) – p1003: 1) Text (“National Forest System”). 2) LH - Senate: floor stmts; “dog didn’t bark”; committee report 3) LH – House: floor stmts/letters 4) Presumption against repeals by implication. 5) Subsequent LH.

2.

Exam Advice:
a. b. c. d.

Know the black letter law (sections I and II). Know theories and how to apply them. Cite cases to help bolster that you get the concept. See suggested treatises by Magarian.

3.

Hearings and Floor Debates Generally:
a.

Weight: floor statements and hearing statements usually receive less weight in evaluating legislative intent. Questions to keep in mind: 1) How probative, if at all, are these canons? 2) How much should we use these canons? 3) What restraints are there on our use of these canons? 4) What purposes are they good for and for what purposes may they be misleading? 5) How do they fit into the big scheme – when should we use these?

b.

4.

Floor Statements:
a.

Pros - how could this type of evidence (floor statements) be useful? 1) ??? Other pros 2) Undiluted, uncompromised. a) But might just be a stmt that some lobbyist asked the legislator to make. 3) Claim of authority: a) Any advocacy for using floor stmts is idea that individual is speaking for the people passing the legislation (if it is the sponsor of the bill, author of bill, leader of party for house or senate). Cons - how could this type of evidence (floor statements) be useful? 1) Only represent one person. a) Any advocacy for using floor stmts is idea that individual is speaking for the people passing the legislation (if it is the sponsor of the bill, author of bill, leader of party for house or senate). 2) No guarantee of expertise of knowledge: anyone can speak.

b.

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Savvy Lobbyist Problem: interest group pressure may influence floor stmts - know that courts will look at this, lobbyist cannot get it into the bill but gets it into the legislative history by asking legislator to make floor statement – consider public choice theory in this theory. 4) Legislator who lost on what statute would mean in text, tries to influence the interpretation.
3) c.

THEME – LH is very manipulable: committee chairman can shape LH to his interpretation – is this is a good or bad thing that legislator was using LH strategically?

5.

Governing Canons for Use of Floor and Hearing Statements:
a.

Who said the statement – someone with knowledge, someone without any knowledge? Someone with bias? 1) Stmts by sponsors or drafters of legislation: put more stock in words of supporter of bill rather than opponent of the bill. 2) Stmts of informed observers sometimes given weight. Was this individual’s view one that committee took into account? Courts may cite to rejection of proposed bills or amendments as evidence of legislative intent. Presidential signing or veto stmts – p995

b. c.

d.

6.

Case - BankAmerica v. US (US 1983) – CJ Burger – p981:
a. b.

Held: says this is unambiguous. Reason:
1)

Usual progression of interpretative method: a) Text (if unambiguous, do not gone beyond this). b) If and only if text is ambiguous, then go to other things. c) Go to intentionalism approach d) Go out to purposive approach – sometimes this is most principled approach. Burger bases decision on text – finds it unambiguous. Burger only talks about LH b/c White raises.
a)

2) 3)

CT discusses LH (hearing testimony of Brandeis). (1) Brandeis says “there should be a prohibition on interlocking directorates on banks and as the statute is now written, it does not include such a prohibition”. (a) Burger uses this to show that statute now does not include this prohibition. (2) White’s COUNTER: (a) What authority does Brandeis have? How can we know he is right? What is his motivation?

77

(b) Maybe Brandeis is blowing smoke to try to get more protection – is this

a negotiating position?

b) CT discusses LH (floor debate post-conference). (1) What happened in post conference floor debate? (a) As written and sent from House, there is no clear prohibition on

interlocking directorates of banks. (b) In conference committee, “other than banks” proviso is added. (c) Then legislators get up and argue about “other than banks” language that was added in conference committee. (2) How does CT use it? CT invokes presumption that stmts of supporters are more reliable than stmts of opponents but comes to different result than dissent. (3) White’s COUNTER:

c.

White Dissent: 1) Text (“other than banks”) – ambiguous. 2) See comments above on how to use LH. 3) White also invokes presumption that stmts of supporters are more reliable than stmts of opponents but comes to different result than majority.

7.

Case - Montana Wilderness Assn v. USFS (CA9 1981) – p1003:
a.

Held: the term “National Forest System” in the Alaska Lands Act means national forests in Alaska, not the whole National Forest System. Reason:
1) 2) 3)

b.

Text (“National Forest System”). CT ignores smattering of LH support for idea that this covers all National Forests. LH – Senate - floor stmts: “dog that didn’t bark”; committee report a) “Dog that didn’t bark” argument: too important to go unnoticed – thus, if it went unnoticed, then it must not be there. LH – House - floor stmts/letters: a) Almost all the evidence suggested nationwide application. b) But judges brush it off. c) Even less helpful to majority b/c an amendment saying it only applies to Alaska fails. CT has to rely on presumption against repeals by implication: says if we interpret statute to apply nationwide, other statutes will have to be repealed.

4)

5)

c.

Notes: 1) Subsequent LH: Norris and CA9 change their mind on this later on basis of committee report for related statutes. 2) Theme next week – what to do with related statutes.

78

F. NOVEMBER 27, 2001 - INTERPRETING STATUTES IN LIGHT OF OTHER STATUTES (P1039-

1061):
 

Make a source of evidence list for when dealing with ambiguous statute. Remember there is no clear hierarchy – what you think constitutes good evidence will depend on your legislative philosophy. Summary – Interpreting Statutes in Light of Other Statutes:
  a.

1.

A and B: statutes A1 and B1: judicial interpretation Similar Statutes (the in pari materia rule): 1) A ≈ B therefore A1 ≈ B1 2) Generally, statutes are from same jurisdictions. 3) Case - Lorillard v. Pons Modeled/Borrowed Statute Rule: 1) A B therefore A1 B1 2) Generally, statutes are from other jurisdictions. 3) Case - Zerbe v. State Subsequent Statutes 1) A > B therefore A1 > B1 2) Repeals by Implication 3) Case - Morton v. Mancari

b.

c.

2.

Similar Statutes (the in pari materia rule):
a.

A ≈ B therefore A1 ≈ B1 1) Definition: other statutes might use the same terminology or address the same issue as the statute being interpreted - p1039. Generally, statutes are from same jurisdictions. Case - Lorillard v. Pons (US 1978) – Marshall – p1043:
1)

b. c.

Issue: whether there is a right to a jury trial in private civil actions for lost wages under the ADEA Held: there is a jury trial Reason:
a)

2) 3)

CT looks to FLSA for guidance (1) Explicit instruction: there is language in ADEA that says refer to FLSA for procedural questions

79

(2) Although no specific textual answer to question of whether the FLSA

allows jury trials, there is a specific provision for “legal relief” in FLSA - CT has interpreted this to mean there is a right to jury trial under the FLSA – thus, there is a right to jury trial under ADEA. (3) Key logical leap: CT says that when Congress passed the ADEA it knew how the CT had interpreted the FLSA - thus, CT will impute to Congress the knowledge that Congress knew CT would find a jury trial for ADEA. (a) Is this a valid assumption about legislative behavior?  Textualists do not like to make or rely on any assumptions about legislative behavior.
b) D urges CT to look at Title VII (not FLSA) b/c the 2 statutes have a similar

purpose, replicated language. (1) D is arguing that best reading of Title VII is not to accord jury trial right in these circumstances - then, D argues that interpretation should be extended to ADEA. (a) Remember there is no express language in Title VII re: jury trials and no clear CT interpretation of right to jury trial under Title VII (2) CT rejects D’s argument based on substance/procedure distinction. (a) If CT were confronted with substantive question about ADEA, then CT would look to Title VII. (b) But since CT is faced with procedural question here, CT will look to FLSA b/c text of ADEA says to look at FLSA for procedural questions.

4)

What do we think of what CT did? a) Are we comfortable with Congress and Court communicating this way – through presumptions and references. b) Remember textualism approach can be used even if not explicitly following text of your statute. c) Problems with this approach: (1) Just as manipulable – justices can achieve result they want by picking which statute is most similar. (2) Wouldn’t it be better to go with intentionalism approach or purposivism approach? (a) The statutory similarity approach seems more concrete than purposivist and intentionalist approach – at least something to hang hat on.

d.

Limits on this approach – p1047: 1) There may be more than one statute in pari material and the statutes may have been interpreted differently.

3.

The Modeled or Borrowed Statute Rule:
a.

A
1)

B therefore A1 B1 Definition: another statute might have been the template from which the statute in issue was designed – p1039.

b. c.

Generally, statutes are from other jurisdictions. Case - Zerbe v. State (Alaska 1978) – p1049:

80

1)

Facts: Alaska tort claims act forbids false imprisonment claims – P brings action in negligence. Issue: how to interpret AL tort claims act. Held: for P. Reason: a) No precedent in AL on its tort claims act. b) Alaska supreme court says AL tort claims act is like Federal Tort Claims Act. (1) P argues that b/c federal govt just amended FTCA to allow false imprisonment, his claim should be allowed. (a) Alaska s ct rejects this argument b/c its act has not been amended and language of Alaska act clearly says no false imprisonment claims. (2) Alaska ct looks at federal judicial interpretations of pre-amendment FTCA and finds that majority of federal courts have come down on side of D in cases like this. (3) But Alaska court finds minority view of federal court interpretations of pre-amended FTCA more persuasive. What do we think about what Alaska court did here? a) Alaska supreme court assumes that Alaska legislature would know that Alaska supreme court in interpreting the Alaska act would look to federal court interpretations to resolve any ambiguities. b) Magarian says this approach undermines the legitimacy of the court’s decision in this case.

2) 3) 4)

5)

d.

Limits of borrowed statute rule -

4.

Subsequent Statutes (Statutory Clashes – the Rule Against Implied Repeals):
a.

A > B therefore A1 > B1 1) Definition: there might be a later statute possibly changing the implications of the statute being interpreted – p1039. General principles 1) Rule against repeals by implication 2) When there are conflicting statutes, the later-enacted statute controls. 3) Courts should strive to reconcile apparently contradictory statutes to remove or at least soften the clash. Case - Morton v. Mancari (US 1974) – Blackmun - p1054:
1)

b.

c.

Fact: 1934, Congress enacts hiring preferences. In 1972, Congress bans hiring preferences. P argue that 1934 hiring preferences was repealed by 1972 EEOC Act. Reason: a) CT says EEOC was not intended to bar these sorts of preferences b/c Congress enacted new preferences after EEOC was enacted.

2)

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(1) Turn this argument around: argue that Congress made new exceptions

b/c it knew it had to make exceptions due to EEOC.

b) Rule against repeals by implication: (1) We must presume that Congress knows what it has done – if Congress is

going to repeal some provision of USC, it will say so – if Congress does not say so, then unless impossible to enforce both provisions at same time, courts will assume that Congress did not mean to repeal earlier statute.
3)

What do we think about what CT did? a) If we assume CT can repeal laws with its decisions, why can’t Congress repeal by implication. b) Does this enhance congressional power at expense of Court or enhance judicial power at expense of Congress?

d.

Limits of Rule Against Implied Repeals:

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G. NOVEMBER 29, 2001 - ADMINISTRATIVE REFERENTS FOR INTERPRETATION (P1061-1093):

1.

Summary – Chevron Deference:
N Is text ambiguous? Y N Has agency effectuated unambiguous intent?

Is agency’s interpretation reasonable?

Has Congress left an explicit gap for agency to fill? Y Y Is agency’s interp. arbitrary/ capricious or manifestly contrary to law? N Y N

Y

N

Affirm agency’s interpretation

Reject agency’s interpretation

Green scenario is not really about deference but about ordinary judicial review – court asks if the agency effectuated the unambiguous intent of Congress? If delegation to agency is explicit, then agency has greatest latitude and potential for greatest deference – watch for violations of non-delegation doctrine (but rarely used) – court asks whether agency’s interpretation is arbitrary or capricious or manifestly contrary to law. If delegation to agency is implicit, then court will not be as deferential – court will take harder look at what agency wants to do – court asks is interpretation reasonable? This is still pretty easy standard of review What constitutes the “text”?
2.

Background:
a.

Agencies have fundamental part in law-making process – given rule making authority. When agency is interpreting statutes, it is on collision course with courts. Themes:

b. c.

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1) 2)

How much respect should courts give to agency interpretation? How does courts’ view of how agency and political branches interact inform courts’ decision whether to defer to agency interpretation?

3.

Case – Chevron, U.S.A. v. NRDC (US 1984) – Stevens – p1064:
a. b. c.

Issue: is EPA’s interpretation of “stationary source” reasonable? Held: YES. Reason: 1) Text was ambiguous. 2) Congress did not expressly leave gap for agency to fill – thus, it was implicit. 3) Thus, question is whether agency’s interpretation was reasonable. a) Evidence of reasonableness. (1) When agency has expertise in the area/content of the regulation: (a) Greater level of deference depends on greater the expertise. (b) Better way to state the question – is this an interpretation that would be better made by agency or court? Court may have more expertise when the matter is a procedural one. (c) Concerns about “agency capture” stop courts from being too deferential:  Insight of public choice theorists.  Definition: regulated industry is the group that keeps the closest eye on agency - if courts are too deferential to agency expertise, then will not be able to prevent against situations where agencies are bought off by industry (thus, not doing their job). (2) Agency seemed to take interests of both sides into account. (3) Note that this is not de novo review – court is just looking to see whether available evidence provides some ground for what agency did.

d. How appropriate is it for CT to defer depending on certain situations? ??? Three possible reasons as to why Congress did not give this agency: e.

Critics of Chevron – p1068:
1)

Broad reading of Chevron is inconsistent with judicial role articulate in Marbury and APA. Chevron was revolutionary decision that ushered in a period of greater deference to agency interpretations of statutes.

2)

4.

Factors to Consider in determining whether to defer to administrative interpretations – p1067: Case – MCI Telecommunications Corp v. AT&T (US 1994) – Scalia – p1071:

5.

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a.

Issue: what does “modify” mean? Is FCC’s interpretation valid? Does modify the tariff allow FCC to not collect the tariff from certain carriers? Held: No Reason: 1) The term here is unambiguous – thus, Scalia does not have to reject Chevron framework 2) Scalia says modify means to change incrementally. 3) To eliminate completely is not the same as to change incrementally. Stevens Dissent: 1) Finds the grant ambiguous and says this is a reasonable interpretation – would affirm agency interpretation of the statute. 2) Criticizes Scalia for not looking at word in its proper context – accuses him of de novo review. Notes: 1) This case is example of textualist revenge on Chevron. 2) ??? This case shows interpretative theory underpinnings of Chevron are not aligned with textualism – they are actually more intentionalism based. 3) Textualists more prone to find terms unambiguous while non-textualists more likely to find terms ambiguous.

b. c.

d.

e.

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VII. CONCLUSION A. Implementation of Statutes:

1.

3 ways Congress’ policy can be implemented and enforced by courts
a. b. c.

Direct government enforcement Creation of private cause of action Through administrative processes.

2.

Administrative Processes:
a. b.

APA = codification of how agencies work in governments. 2 ways that agencies implement policies: 1) Agency adjudication: if agency chooses to provide on the record review, then certain APA standard kick in – substantial evidence. 2) Agency rule-making: notice and comment. Judicial review available for both ways 1) Generally, a very deferential judicial review under APA. a) Chevron is for special situation. b) Same basic rule for all judicial review applies under APA 2) Compare standard of judicial review here (administrative process) and standard of review when Congress uses other forms of policy implementation (like direct govt enforcement and/or creation of private cause of action): where courts can engage in de novo review. Means a great deal of authority is vested in agencies rather than courts. DDD

c.

d. e.

3.

How does institution of agencies affect balance of power?
a.

Agencies are not directly politically accountable but not really countermajoritarian either. Agency capture: agencies are highly susceptible to interest groups - collective action problem (e.g., EPA). SOP concerns: agencies not fit into traditional notions of agency. Are courts benefiting from agencies? 1) Aiding judicial influence: from practical perspective, it reduces courts’ workload. 2) Taking away judicial influence: violates ART III, judges are supposed to be making these decisions. Agency Expertise can be a good or a bad thing.

b.

c. d.

e.

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4.

Effect of Theories on this Issue:
a.

Agencies accelerate deliberation – give Congress a place to shove off some decision-making. Public Choice/Pluralist
1)

b.

Descriptive theory - public choice theory: focus on dangers of agency capture b/c this theory is based on idea that horse-trading is good Normative theory – pluralist:
a)

2)

Bad things from agency pluralist perspective: (1) Need access to system so that interests can be represented in proper proportion – worry that agencies will distort this access – BUT aren’t they concerned with intensity of preferences – say regulated interests are ones who really care – but question still remains as to whether agencies provide to easy an door to these interests groups – agency system may not accurately reflect preferences. (2) Pluralist theory seems more consistent with non-activist, limited government: thus, would not like agencies b/c leads to too activist a government role – too large a government.

b) Good things from agency pluralist perspective: (1) To extent agencies improve accuracy of preferences (more research, more

focused on issue), then good thing.

c.

??? Republican/Trusteeship
1) 2)

Descriptive: Normative: a) Bad Things from Republican/Trusteeship Theory: (1) Not representatives – no accountability. (2) Agency becomes self-interested actor in process – no contact with people. (3) Agency capture concerns: Iron Triangle Concerns (congressional committee, agency and lobby – no one else can access).
b) Good Things from Republican/Trusteeship Theory: (1) Republican theory seems more consistent with activist government: thus,

republicans may like agencies because aid in activist government.

(2) ??? Other

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