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Legislation, Prof. Huq – Spring 2009

PART ONE: THE LARGER PURPOSE OF LEGISLATIVE PROCESS1) The life cycle of a bill through vetogates:

a. Bill introduced in house.b. Referral to standing committeec. Committee:

i. Can refer to subcommittee.ii. Hearings can be held on major bills.

iii. Committee resolution – take no action, defeat, accept and amend and report.a. Put on calendar.b. Rules Committee (Major bills)c. Floor Actiond. SENATE!

i. Committeeii. Floor Action

e. CONFERENCE COMMITTEE (if House and Senate pass differing versions, a conference committee is created with members of each house to draft a conference report regarding those matters where there is disagreement)

i. Remember, can only focus on the parts that feature disagreement!ii. Conference report signed by both houses.

f. Bill signed by speaker and vice-president:g. PRESENTMENT TO PRESIDENT:

i. Signii. Veto

iii. Permit to become law w/o signatureiv. “pocket veto” after adjournment.

2) THE LEGISLATIVE PROCESS IS AN ANTI-MAJORITARIAN ONE!a. Bi-cameralism and presentment makes it easy for a minority group to kill a bill.

i. Kill it in committeeii. Stop the bill before full chamber consideration.

iii. Flibuster on the floor of the Senate, amend it todeath, or outright defeat it on the floor!

iv. Use the veto opportunities in the other house (committee, filibuster, amending it to death).

b. Presentment = if the President vetos, then it would take 2/3 supermajority to bring it back!


ARGUMENTS FOR THIS ANTI-MAJORITARIAN PROCESS:Anti-populism/majoritarian factori. Deliberately slow process

1. Sifting process – getting rid of bad laws.ii. Functional presumption against new legislation

1. Anti-regulatory/ pro-private ordering bias2. Endowment effect (behavioral law and econ)

a. Value more the thing you have versus what you don’t.3) CRITICISM OF THIS PROCESS Why is it bad to make legislation so difficult to pass?

a. Reinforces a Status Quo Biasi. Bad things last too long because charge is hard


1. Slavery would have taken a long time to have been abolished.2. Sexism.3. GAY MARRIAGE.

ii. Legislature won’t change as fast as the times.b. Why do things get the presumption of correctness?

i. Prevents us from solving problems- i.e. Patriot Act legislation that wasn’t passed prior to 9/11

c. Are vetogates always a good thing?i. Doesn’t mean you’re going to deliberate just because you have veto power

1. Minorities can hold up the processa. Rent-seekingb. Christmas tree legislation

Civil Rights Act of 1964Difference between legislative process and legislative product: what does the record show?

Coalition buildingo Deal trading between Western and Southern senators (water and race issues)o Need to secure a filibuster proof majority (cloture)

Intent Strategic decisions

o E.g. adding “sex” thought it would cause the bill to failo Limiting who could bring suit


Individual suit reinstatement and back pay Pattern and practice (where AG brings suit) equitable relief, but requires AG

signoff Limited NAACP from filing for individuals Limited EEOC from filing pattern and practice suits

Doesn’t reflect the median attitude of Congress: the content of the statute depends upon the voter who stands at the margin for the relevant procedural maneuver

Not a reflection of majoritarian preferences

Griggs v. Duke Power Company (1970)Court says h.s. Equivalency test is ok

Discriminatory intent vs. disparate impacts Court finds the arguments in favor of the law prohibiting discriminatory intent far more

persuasive.Supreme Court overrules –changes the way “discrimination” is defined

In 1964, Congress just wanted to outlaw discriminatory bias, but by 1972 they wanted to target disparate impacts

Griggs may have gone against the original intent of the CRA, but there’s been no effort to overturn

Congressional silence = tacit approval? We will come to the topic of congressional silence later!

United Steel Workers of American v. Weber (1979) Supreme CourtAA plan for black workers, white employee with seniority sues for being passed over for training program

Double bind between McDonald and Griggs suits for employers


Court says that while AA programs aren’t required under 703(j), that doesn’t mean they’re prohibited

Jurisprudence of increasing miseration: in order for Congress to correct mistakes (absurd results, double binds) the court shouldn’t gloss over them, but should make the problems as blatant as possible

E.g. Calabresi in ERISA suits- trying to make it clear to Congress that the statute is producing perverse results

SO HOW DO WE EXPLAIN WHAT’S GOING ON? POLITICAL THEORY, BITCHES!1) PUBLIC CHOICE THEORY:

a. WHAT?i. A transactional view of the legislative process whereby interest groups are

DEMANDING laws and legislators are SUPPLYING them.ii. Smaller interest groups with concentrated benefits are sometimes more

influential in getting legislation passed than large “public good” benefits.1. WHY?

a. Lower organizing costs.i. If support= size of sheer benefit + how costly it is for the

relevant group to mobilize likely for small groups to win!

b. Better at policing free riders!c. Less of a collective action problem – in large groups, you are

always waiting for SOMEONE ELSE to make that first move.i. The more dispersed the benefits, the more likely you

are to have collective action problems

b. INTEREST GROUP DEMAND: Distributed Costs Concentrated Costs

Distributed benefits

Little group activity on either side of most cases.

Opposition will tend to be better organized than supporters.

Concentrated Benefits

Tends to have strong interest group support and weak, if any, organized opposition because of the free-rider problem. Benefit to an individual of having the policy changed is simply too immaterial.

Continuous organized conflict over payment of benefits and distribution of costs.

i.c. INTEREST GROUP SUPPLY COUPLED WITH DEMAND:

Distributed Costs Concentrated Costs


Distributed benefits

No strong pressure from organized interests = no bill or a symbolic action. Sometimes delegation to agency regulation.

Strong opposing organized interests = legislators draft ambiguous bill and delegate to agency regulation so all sides can claim victory. Results in regulatory capture.

Concentrated Benefits

Costs can be allocated to an uninformed public --> legislature will distribut subsidies and power to the organized beneficiaries.

STRONG OPPOSITION ON BOTH SIDES = No bill or delegation to agency.

INSTITUTIONAL THEORIES OF STATUTORY ENACTMENT:Institutional Theories of LegislationPositive political theory: we can work out what outcomes will be reached in the political process by looking across time (p. 75)

How each actor in the process is calculating what to do in light of what other actors will doo Anticipated reaction

If any of the 3 branches are distributed on different sides of the status quo, you’re unlikely to get action Bicameralism and presentation have a centrifugal effect Dynamic character of the interaction- first actor thinking about what later actors will do

Political actors are goal oriented- act strategically to ensure that the ultimate decision is as close to their preference as possible

RESULTS HOW WILL THE LEGISLATION TURN OUT ALONG THE POLITICAL SPECTRUM?L R X----------------------------------------------------------------------------------------------------------------------------- P S /\ H (SQ) I(A statute will be passed that lies halfway between S and H!)

----------------------------------------------------------------------------------------------------------------------------- P S (SQ) H(no bill: the senate would not want to give up ground! At the same time, if they do, the P will veto it)

X ----------------------------------------------------------------------------------------------------------------------------- P (SQ) (h) H (s) S

AN INTERESTING ANOMALY: Powell and the notion of “cycling:1) Facts of Powell:


a. Importance of ORDER in votesThree votes in the House of Representatives:

1. Vote on the motion on previous questiona. Voting on the committee’s finding that Powell be seated and punished-

defeated2. Resolution on vote to exclude by majority vote

a. Speaker says majority vote would be sufficient to excludei. Exclusion is supposed to require a super majority

3. Vote to excludea. Get the super majority they’d need for expulsion, even though they only

needed majority for exclusion4. People may have voted for exclusion because after the elimination of other

options, it remained the only way to punish Powell2) So what is cycling?

a. When you have a group of 3 or more people, and they’re choosing between 3 or more options, there will be no stable preference if you use a majority vote system

When applied between pairs of options, it won’t yield stable options Voting paradox:

o Cycling: when you move from one option back to itOccurs when:

Preference are transitive- assumption that you have a logical sequence of preferences

Any move that improves one person’s well-being without harming any other will be adopted

No dictator- all decisions made by groups Individuals won’t pay attention to irrelevant alternatives

So why is there less cycling than you would predict in democratic institutions? Strategic voting Institutions that limit and channel choices

PART TWO: THE LEGISLATIVE PROCESS – LEGAL CONSTRAINTS ON LEGISLATION:1) ELIGIBILITY OF MEMBERS:

a. The Constitution lays down minimum requirements.b. Congressionally imposed qualifications?

i. Congress has no authority to alter the constitutional qualifications for office.1. Powell v. McCormack Found that Congress is without the authority to

exclude any person, duly elected by his constituents, who meets the constitutionally prescribed standing qualifications of age, citizenship and residency.


a. Though expulsion is allowed through the constitution with a 2/3 supermajority, exclusion (which is essentially the same thing) allows for only a majority vote in this case.

b. WHY? Hamilton said “the people should choose whom they please to govern them.”

ii. Additionally, state-imposed measures for getting around the qualification clause is not allowed:

1. US Term Limits Inc. v. Thornton – A state-imposed ballot access restriction is not constitutional when undertaken to disadvantage a particular class of candidates and to evade the qualifications clause.

a. FACTS: State Amendment prohibited candidates for Congress access to the ballot if they had already served a number of terms.

b. Power to add qualifications to the qualifications clause is not within the “original powers” of the states and thus is not reserved to the states by the 10th Amendment!

2) LEGISLATIVE IMMUNITIES:a. Speech or Debate Clause – the sole protection for members of Congress.

i. It provides that “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other place.”

ii. Once a legislator’s activities fall under the constitutional immunity, the lawmaker cannot be questioned about them, or the motives behind them, in any place other than the House or Senate.

1. This includes Executive Agency regulation!2. US v. Rayburn House Office Building - Extends protection to paper and

electronic files:a. What happens when a speech and debate violation has

occurred?i. TRADITIONAL VIEW: Privilege is absolute and

therefore never able to be introduced into evidence1. Absolute= no balancing test2. REMEMBER – In contrast, executive privilege is

qualified. The court can decide whether a reason for disclosure is enough to overcome privilege through a balancing test.

b. Jefferson he has to be there to act as a filter- he gets to decide what is privileged!

i. CONGRESS IS THE ONLY BODY THAT CAN DO THE INITIAL PRIVILEGE SCREENING!

iii. PURPOSE: Framers were aware that in England, kings would often imprison and interrogate members of the Parliament. Therefore this would help to ensure congressional independence because it reduces the ability of the executive branch to harass lawmakers.

1. At the same time, Congressmen do not have to testify in court.iv. HOW FAR DOES IT EXTEND?

1. To “things generally done in a session of the Congress by one of its members in relation to the business before it.”

a. LIMITED TO LEGISLATIVE ACTS!


2. Applies to congressional aides in regards to conduct that would be performed by lawmaker.

a. Gravel v. US Immunized an aide when acting as the alter ego of a member.

i. Judicial recognition that members must delegate many legislative tasks in order to work effectively in a complicated environment.

3. Does not apply to efforts to educate the public about legislative matters!

a. Press releases, appearances on TV in favor of legislation, or newsletters = NOT APPLICABLE!

4. Does not apply to contacts with administrative agencies on behalf of constituents!

a. Gravel – “members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies – they may cajole and exhort with respect to the administration of a federal statute – but such conduct…is not protected legislative activity.”

3) EXECUTIVE PRIVILIGE:a. This is a QUALIFIED privilege!

i. EXCEPTION – National security issues offer ABSOLUTE IMMUNITY.b. No Constitutional basis for Executive Privilege – this began as a practice during

Washington’s administration when he asserted that he did not need to give up papers to Congress.

c. WHY DOES IT EXISTS?i. To allow for candor and objectivity between president and advisors!

ii. To keep military and national security functions = absolute immunity!1. Other than the above topics, there is only a qualified immunity!2. Even when the speech is amongst his national security advisors!

iii. So why is one (speech and debate) absolute and the other (executive privilege) is qualified?

1. Textual S&D is in the constitution while Executive Privilege is not!2. Why should we be concerned about giving our officials this provision?

a. Don’t want to OVERPROTECT because that might encourage criminality!

b. Multiplicity of congress membership shows a greater degree of deference…THEY CAN POLICE THEMSELVES!

i. Constitution can allow for expulsion in the Congress.ii. Since Executive has unilateral power, then there is no

self-policing! d. US House of Representatives v. Miers

i. House trying to enforce subpoenas for Miers (to testify) and Bolton (who has documents).

ii. Court declares that executive immunity is QUALIFIED and not absolute (as Miers claims)!


1. Therefore, they have to show up, but they can still not answer any questions by citing EXECUTIVE PRIVILEGE!

4) CONGRESSIONAL (AND CONSTITUTIONAL) RULES FOR LEGISLATING:a. Congressional Regulation of Legislation:b. Points of Order:

i. Where congressman is able to bring to the body’s attention that a proposed legislation may have broken a congressional rule.

ii. This then necessitates a floor vote on THAT PARTICULAR measure!1. Allows for the opportunity for focuses deliberation!

iii. Serves a signaling mechanism Point of Order will require that legislators vote be publicized and they will be revealed to have voted for something that is popularly unpopular!

1. Policy entrepeneuers will be able to bring to the public attention something that would normally fall in the cracks!

2. Then the public can punish the legislator through election!iv. UMRA – Unfunded Mandate Reform Act

1. Unfunded mandates? Mandates made by congress to state and local governments to do something, so then the state will have to use their own funds!

2. Utilizes Points of Order scheme to make sure that legislators are held accountable for allowing Unfunded Mandates to go through!

3. A POO lies against any reported bill that contains a federal mandate and is not accompanied by a cost statement from the authorizing committee!

a. Therefore, brings a vote on waiver and any member who votes to waive has voted to impose the costs of a federal program on states or localities!

b. Legislator can no longer use the excuse of “well, I had to vote for that mandate as part of a beneficial, larger bill that otherwise would not have passed.”

c. JUDICIAL REVIEW OF LEGISLATION? – Private Actions for Congressional Rule-Breaking:i. Marshall Field – RULE: Once a bill has been enacted into law through the

process of bicameralism and presentment, courts will not look into the procedural history!

1. So allows for certain situations where a violation of bicameralism and presentment can basically be gotten away with!

2. Public Citizen v. United States District Court:a. FACTS: Clerical error changed the time frame for a Medicare

regulation- Senate conference committee version ends up with a typo. This is later corrected and signed by both houses and Senate.

b. RULE: Marshall Field forecloses Court from investigating- not going to look beyond the relevant signatures from the House, Senate, and President!

3. HOWEVER - US v. Munoz-Flores There is a valid cause of action and a private citizen can assert that a law violates the ORIGINATION CLAUSE OF THE CONSTITUTION even after it becomes law!

a. Creates limited exceptions to the Marshall Field rule!


b. HOWEVER - Stevens argues that the House itself – rather than the Court – is in the best position to enforce and effectuate the goal by which that body monitors the efforts to tax the people.

5) LEGISLATOR STANDING:a. Who should be able to enter a federal courthouse and bring suit re: legislative action?

i. Three Part Test to Determine Standing:1. Has person been injured in fact?2. Is the injury fairly traceable to the defendant?3. Is there anything that the federal court can do about it? Is it

redressable? b. Michel v. Anderson:

i. RULE: Voters are allowed to bring suit for voter dilution (where representatives from US territories are allowed to sit in and vote on the Conference of the Whole).

1. Their representatives are now 1 voice out of 440 as opposed to 1 out of 435, which represents a valid claim for voter dilution.

c. Raines v. Byrd:i. FACTS: Line Item Veto Act allows president to cut out individual “pork”

provisions from larger bills. Group of congressmen sue on the basis that this nullifies their votes in Congress and therefore the law should be struck down.

ii. RULE: Legislators do not have proper standing to sue for vote dilution or nullification in legislative acts because the injury is not personal to them, but is instead to their seat and Congress as a whole.

1. PROPER WAY TO DO IT: Congress could create a committee that would then be able to bring suit.

2. Court is basically saying: “You idiots, you can’t fucking sue just cause some bill you didn’t want passed. Fuck off.”

iii. RANDOMLY: Also about ripeness- if they sued when their votes had actually been nullified by a Presidential veto, the decision could have been narrower or maybe come out the other way.


6) BICAMERALISM AND PRESENTMENT:a. Bypassing Bicameralism and Presentment Through Legislative Vetoes:


i. WHAT ARE THEY?1. Any statutory mechanism that renders the implementation or the

continuing implementation of agency decisions or actions subject to some further form of legislative review or control, usually for a specified time period.

2. Allows either the body as a whole or various committees to dictate certain Agency decisions.

3. TYPES:a. Negative Veto stipulates that administrative decisions will be

effective, unless legislature or designated subgroup disapproves of those decisions.

b. Positive Veto Requires legislative approval for all administrative decisions before they become effective

c. Laying Over Agency executive emust turn overproposed decision to legislature, who can study and take action on them, so they do not go into effect for some time

ii. WHY?1. With the increased complexity of government, the Legislature has

delegated more and more power to administrative agencies.2. This is a measure to pull back on that and afford legislature more power

over the decisions that they are delegating.iii. WHAT DO THEY DO?

1. Provide a quick mechanism to slow down or overturn administrative actions that are unresponsive to the legislature’s aims in the original authorizing statute without going through the full legislative process

2. Power to nullify an administrative decision has been vested in joint action of both chambers of the legislature, action by only one house, or action by a legislative committee.

3. ALLOWS FOR LEGISLATIVE CONTROL OF EXECUTIVE AGENCY AND BYPASSES BICAMERALISM AND PRESENTMENT!

iv. Effects of legislative veto on dynamics within Congress:1. Particularly when vested in one house, shifts power to the gatekeepers

within the committee system2. A controller of a vetogate has more power and is not limited by

constraining factors that might be brought into play with bicameralism 3. By-passes procedural restraints that are put in place to protect

minorities a. Changed from bicameral presentment to a situation where ONE

PERSON IN A PIVOTAL POSITION (controller of vetogate) could alter the legal rights of persons without the constraining factors that might be brought into play by plenary consideration through bicameral presentment.


v. JUDICIAL REACTION?1. INS v. Chadha Chadha was able to obtain a suspension to his

deportation. The House overrode the suspension of deportation, allowing for the Court to reopen the case and order him deported.

a. RULE: Any laws that affect and change the rights, duties or relations of people CANNOT be used to bypass bicameralism and presentment

i. HOLDING: All exercises of legislative veto that have the purpose and effect of altering the legal rights, duties and relations of persons outside the legislative branch are unconstitutional and must be properly executed through bicameralism and presentment.

ii. Strong interest against despotism.iii. Outlaws ALL legislative vetoes, but this power is

narrowed in…2. Bowcher v. Synar:

a. RULE: Congress passes laws that are then executed by the Executive Branch.

b. Therefore, Congress usurps executive power when giving an officer of Congress the authority the ability to execute the law

c. Such discretionary powers CAN be delegated to an executive branch entity.

i. Thus, they can get by bicameralism and presentment!b. The Line Item Veto Act:

i. Delegated cancellation power to the President limited to spending programs.1. Proceduralist method of restraining federal spending by erecting new

hurdles in the legislative process.ii. Material Effects on Congress:

1. So would the line-item veto actually work and help curb interest group spending?

a. In a world without line-item veto, you would want to join your cause (if you’re a senator with a small interest group behind you) with other legislators who want to join them together into a CHRISTMAS TREE BILL!

i. So you marginally care about what the President thinks! Cause he can either take or leave the bill AS A WHOLE.

b. In a world with line-item veto, president has a lot more POWER! Might be more important to figure out how the president would deal with this legislation as opposed to your fellow legislators!

i. 43 states have line-item vetoes and it is shown that this thing that is supposed to reduce pork results in statistically insignificant reductions in spending rather, it results in changes to the nature of bargaining!


iii. JUDIDIAL REACTION: Clinton v. City of New York:1. Court finds the Act unconstitutional!

a. Constitution is silent on the subject of unilateral presidential action that repeals or amends parts of duly enacted statutes.

b. Infers that silence should be treated as an express prohibition.i. Expressio Unious – the Constitution created a strict

procedure for enacting Statutes, and therefore to make that argument means to exclude ANY OTHER MEANS of statutory enactment!

c. Stevens argues that the act gives President the UNILATERAL POWER TO CHANGE THE TEXT OF THE STATUTE, THUS PREVENTING THAT PROVISION FROM HAVING LEGAL RULE AND EFFECT!

i. Unconstitutionally bypasses bicameralism and presentment!

2. NOTE The Tariff Act is allowed. That is where the President MUST act when it reaches a specific amount, so the Court’s concern here might be with the discretionary nature of this act.

3. DISSENT:a. Scalia Functionalist argument. The spending itself is

discretionary, so there is no difference between the president cutting this part of the bill and the president just deciding not to spend that money in that portion of the bill.

b. Breyer Functionalist as well. Given how complex our nation has become, Congress cannot divide bills into thousands or tens of thousands of separate appropriations bills, each of which a president would have to veto or sign separately.

i. Therefore, line-item veto may help representative government work better.

ii. In addition, Constitution is vague on the extent of Executive Power and this amendment process might be a Constitutionally valid part of that power.


7) DIRECT DEMOCRACY AND DUE PROCESS OF LAW-MAKING:a. Hampton v. Mow Sun Wong:

i. RULE: When the federal government asserts an overriding national interest as justification for a discriminatory rule, due process requires that the rule actually be intended to serve that interest.

1. Due process requires that a government policy be issued by a body that is competent to promulgate it.

a. This rule has a policy justification; the CSC which has narrow responsibility for promoting efficiency of federal civil service.

2. Court holds that congress or the president might be competent to issue an order of exclusion, but Civil Service Commission is not.

a. President and Congress are bodies meant to deal with exclusion.

b. EXAMPLE: President Ford essentially overruled the Court by re-establishing the discriminatory policies under the same justifications.

ii. ALSO Congressional and executive knowledge of an agency’s policies combined with failure to act does NOT rise to the level of tacit approval.

b. Differences between representative and direct democracy:i. “Capture” interest groups have ways of framing the issue!

ii. Capacity for compromise in representative democracy.iii. Aggregation problems.

1. Here are ways that legislators deal with the fact that the order of presentment (of bills) often results in what the result is!

2. Who sets the agenda helps shape the result (either nothing + gay marriage, or civil union only or civil union + marriage!) HUGE AMOUNT OF INFLUENCE ON THE RESULT!

iv. Externalities & unexpected side-effectsv. Bias / populist (“tyranny of the majority”)

1. Framers concerned with protecting the wealthy from the common rabble!

vi. COST! vii. Median quality/intelligence of the voter Federalist 10

1. So that’s why the Founders excluded blacks and women…2. Allow for refinement of opinion regarding legislation! So you want the

BEST PEOPLE to become legislators! 3. Condorcet “voting paradox”.

a. Condorcet jury theorem…the larger the group of people you have voting on something, provided that average intelligence is above-average…the larger the vote, the more likely it is that you will get the right answer provided that certain conditions are fulfilled!


b. Each individual has greater than a 50% chance of getting the right answer!

c. What we’re interested here is what the majority THINKS is the right answer as opposed to some sort of objectively stated right answer!

c. Romer v. Evans:i. Popular referendum amends the state constitution which provides that no state

or local branches of government can enact any law or regulations protecting homosexuals from discrimination.

ii. Declared unconstitutional by the Court.iii. How Equal Protection Works:

1. Are you a member of a legally protected class?2. If YES STRICT SCRUTINY:3. If NO RATIONAL SCRUTINY:

a. In order to enact a law that is discriminatory on its face, that law must be supported by legitimate policy considerations:

i. Must have rational relation to a legitimate end!ii. Desire to harm a politically unpopular group is not a

legitimate government interest this amendment is explainable only by animus towards homosexuals.


WHAT TO DO ON EXAM DAY:1) Start with plain meaning of the words.2) Go to other textual canons.3) Record/Legislative Intent.

PART THREE: THEORIES OF STATUTORY INTERPRETATIONWhat is the goal behind statutory interpretation?

1) BACKGROUND NORMS THAT THEORIES MUST ADDRESS:a. The Rule of Law Idea:

i. Statutory meaning should be relatively predictable and accessible to the citizenry and should be neutrally applied to everyone.

b. Democratic Legitimacy Idea:i. Interpreters ought to defer to decisions made by the popularly elected

legislators who enact statutes.c. Pragmatic Idea:

i. Interpreters have obligation to contribute productively to the statutory scheme and ultimate common good.

2) INTENTIONALIST THEORIES OF STATUTORY INTERPRETATION:a. WHAT?

i. Since statutory laws are directives from the legislature (derived from elections by We the People and given power by the constitution to make laws), agencies and judges should apply those directives consistent with the expectations of their authors.

ii. How did the legislature intend for the law to be interpreted?iii. Power rests in its ability to link a current interpretation to past legislative

majorities!1. In the end, it is hard to prove that our interpretation is the one

actually intended by most legislators!b. NOTICE THE INCREASING GENERALITY OF THE METHODS OF ANALYSIS!c. Specific Intent:

i. How the legislators decided a particular issue of statutory scope or application.ii. Holy Trinity What did the congress of 1885 intend to do with preachers?

1. Court did not use this method. If so, they would have seen that there were many floor debates about the specific exemptions and that the problem in the case was raised but never amended by congress.

iii. Weber Rehnquist, dissenting. Found statements galore by congressmen who reassured the congressmen that the anti-discrimination rule meant that there could be no hiring or firing based on race WHATSOEVER.

iv. PROBLEMS:1. Aggregation Congress requires aggregation of both houses, so how

can you say what the specific intent of congress actually was? Did the majority of voters believe with what the sponsors said or were they voting on it for other reasons?

d. Imaginative Reconstruction:i. What would Congress have done if they were confronted with the exact same

problem as we are facing now?


1. Weber dissent The sponsors and pivotal voters agreed to prohibit quotas in order to curry that support over the strong Southern opposition.

2. Holy Trinity Judging by America’s religious nature, Congress could not have wanted to prohibit preachers from coming!

ii. Whose intent to you analyze?1. 51st Senator to pass the the bill?2. 67th Senator needed to defeat southern filibuster?

e. Purposivism:i. What was the statute’s goal?

1. This asks questions that might be able to garner a larger majority of voters in Congress!

2. Also, this is a tool that more nimbly addresses new or unforeseen circumstances!

ii. Courts should analyze statutes according to their “spirits.”iii. Weber A LEADING PURPOSIVIST OPINION! Brennan reasoned as follows:

1. Purpose of the statute announced by its sponsor was to bring blacks into workforce.

2. Programs such as the Steelworkers-Kaiser one employed blacks in jobs that had remained closed to them after act went into effect.

3. The statute should be construed, if possible, to advance the workforce-integration purpose, which the program did.

iv. Holy Trinity Invokes the “spirit” of the Alien Contract Labor Law!

3) LEGAL PROCESS THEORY:a. You start with purpose and then move onto the words!

i. LIMITATIONS:1. You don’t push the statute’s purpose beyond what the words will

bear!a. Don’t take understanding of purpose and apply in beyond

what words would bear.2. One should not read a statute to come into conflict with certain clear

Constitutional principlesa. Codified as “avoidance canons.”

b. EXAMPLE:i. Shine v. Shine Where the words show a mistake, you should essentially

“rewrite’ the Statute via interpretation so that it falls in line with a greater Congressional purpose!

1. Plain language of act seems to say that pensions are not to be taken for the benefit of spouses, but this is contrary to Congressional purposes to “always…ensure that genuine support obligations would not be discharged.”

4) NEW TEXTUALISM:a. Scalia!


b. Holds that the only object of statutory interpretation is to determine the meaning of the text and that the only legitimate sources for this inquiry are text-based or –linked sources!

i. What an ordinary speaker of the English language would draw from the statutory text is the alpha and the omega of statutory interpretation.

ii. When the text is plainly clear, you should not even try to look at intent!iii. Start out by looking at word in ordinary usage, then, instead of looking at

canons…look at what would be compatible with the surrounding body of law!iv. Green v. Bock Laundry – Scalia, Concurring – Statute, when construed literally,

produces an unconstitutional result. The job is to give the word some alternative meaning that avoids such a consequence.

1. Chooses a result that:a. Least damages the text.b. Is consistent with the policy of the law to provide special

protection to Defendants in criminal cases.2. What does a Textualist do when confronted with a text that, on its face,

is unconstitutional and the plain text is not within the legislative intent?a. Rules Enabling Act Supreme Court can promulgate new

Federal Rules of Evidence.i. Why not just declare the whole statute

unconstitutional?ii. Some textualists believe that if there is an obvious

error, that’s fine, just apply it incentive to Legislature to fix the mistake!

iii. Scalia instead actually changes the statute! v. Chisom .v. Roemer dissent Suggests that using the term “representative” to

apply to Judges simply because some of them are elected is a bad way to go about it because Judges are ordinarily not meant to serve in that capacity!

c. REJECTS THE USE OF LEGISLATIVE HISTORY:i. RATIONALE:

1. Article I, Section 7 of Constitution The only thing that becomes law is the text that is passed by both House and the Senate!

a. Unwritten intentions of one House or of one committee member is not the law, nor should they be used as evidence of the law.

2. Consistent with the rule of law and separation of judicial from legislative powers in our system!

a. Otherwise “people need not obey the letter of the law because the softies in the judiciary will bend the law and create exceptions.”

d. CRITIQUES:i. Chadha emphasized that bicameralism and presentment were only limitations

on Congress’ actions and not on the actions of the Executive and Judicial branches.


ii. Federalist No. 78 – Hamilton maintained that courts should not only interpret statutes equitably, but might also respond to “unjust and partial laws” by “mitigating the severity, and confining the operation of such laws.”

1. WHY? Possibility of judicial interpretive curtailment of unjust laws would force legislature to control more directly the scope of their statutes.

e. 3 Underlying Justifications of New Textualism:i. Consistency with Facts:

1. We know legislative process is chaotic and undependable (outcomes depend on order in which things are presented, what amendments are brought to table), so all talk about what congress intended is blather and all we know is what the legislature produces.

a. CRITICS: This degree of nihilism is understated. Congress is an Enacting Coalition! They come to a functionalist agreement about what the law is that should be passed. So, we can find evidence of the enacting coalition! We can know something of intent!

i. RESPONSE: So how do we find that enacting coalition?ii. Democratic Legitimacy:

1. Congress has the responsibility of crafting statutes…those laws then need to be followed to the T and only those products that are the end result of bicameralism and presentment are worthy of democratic respect.

2. CRITICS: a. Estridge Study When does Congress overrule Supreme Court

decision? Over half of the cases overruled are ones where the Supreme Court relied on Textualism.

b. When Court engages in purely Textualist analysis, Court is not more likely to get the right result per what Congress intended.

iii. Rule of Law:1. Stability and predictability2. We think it’s good when people know what the law is, when it is certain,

etc.3. NOTICE AND DUE PROCESS CONCERNS!.4. CRITICS: This is not necessarily the case.

a. Do we make predictability based on what people know to be the PURPOSE of the statute or do we promote stability by looking to the dictionary and parsing words with incredible precision and fineness based upon refined command of the English language and grammatical rules?


b. Moving analysis into semantic world as opposed to policy world will be just as unpredictable – Those who apply the laws do not worry about semantics, but the FUNCTIONALITY of the laws!

5) ECONOMIC THEORIES OF STATUTORY INTERPRETATION:a. A useful tool in how to interpret statutesb. Ex Ante Approaches to the Debate between Textualists and Contextualists

i. Comes in handy in determining how to read the meaning behind certain words!ii. Hard cases invite ex post decisionmaking…where rules are established that

might be fair in that particular case but have excessive future social costs.iii. Economic theory would valorize an ex ante perspective Evaluate a decision or

rule upon the basis of whether it would provide proper incentives for the citizenry.

iv. What rule would parties in general (not just parties at hand) have adopted ex ante to maximize benefits and minimize costs?

1. Posner: Judges must reconstruct original deals; look at statutes like contracts you should interpret the statute in such a way to reassure citizens, interest groups and legidslators that statutory deals will be respected and enforced.

2. US v. Marshall – Posner, Dissenting – Since this statute is directed towards drug users and dealers, any ordinary usage analysis should be grounded in THEIR UNDERSTANDING OF IT!

c. ADVANCING PUBLIC-REGARDING GOALS AND MINIMIZING RENT-SEEKINGi. BASED ON public choice theory!

DISTRIBUTED COST CONCENTRATED COST

DISTRIBUTED BENEFIT

DANGER: These laws are usually in public interest, but legislatures fail to update them as society and underlying problem change; RESPONSE: Courts can expand the law to new situations and develop it in common law fashion, subject to limits imposed by statutory text.

DANGER: Regulated groups will tend to evade their statutory duties and press to "capture" the agency created to administer law. RESPONSE: Courts can monitor agency enforcement and private compliance, and open up procedures to assure excluded groups are heard. Courts can press agency to be faitful to the stated public-regarding goal of the law.

CONCENTRATED BENEFIT

DANGER: Rent-seeking by special interest groups at expense of general public; RESPONSE: Courts ought to construe the law narrowly to minimize the unwarranted benefits. Hold the statute to its public-regarding justification.

DANGER: The statutory deal may grow unexpectedly lopside over time. RESPONSE: Do not attempt much judicial updating, unless affected groups are not able to get legislature's attention.


d. Perez v. Wyeth Laboratories Law with concentrated benefits for pharmaceutical companies to the distributed cost of drug users is construed narrowly so that it does not apply when companies “directly market” their products!

i. Interpret law in the way that would best serve the interests of the PUBLIC AT LARGE!

e. Weber Looking at racists arguments that they are concerned about “autonomy of business” and then couches his argument in that regard, where they should have the autonomy to avoid CRA or Griggs actions!

i. “We will hold people to their publicly stated intentions and then push legislation to the best possible system of distributed benefits!”

PART FOUR: DOCTRINES OF STATUTORY INTERPRETATION:

Textual Canons:1) ORDINARY (AND TECHNICAL) MEANINGS OF WORDS:

a. Judges look at words as they ordinarily mean Either dictionaries or based on judges’ own linguistic experiences and intuitions.

i. DIFFERENT FROM LITERAL MEANING OR STRICT CONSTRUCTIONb. Prototypical Meaning (Weber; discriminate not in a broad sense but in the

perjorative sense) i. Often results in NARROW, CAUTIOUS or RESTRICTIVE readings of statutes.

c. If trade/specialized word, courts will often adopt that specialized meaning lest the result in absurdity:

i. Nix v. HEddon1. Tariff on vegetables, but not fruits. Plaintiff tries to argue that the

tomato is a fruit because it is “the fruit of a vine.”2. Court is like, “No. It is commonly understood to be a vegetable.”3. There is a difference between the technical classifications of these

things and their common/commercial usage!ii. US v. Marshall Posner argues that you should use the meaning of the word

that conforms to the understanding of those that you are trying to aim the law at.

d. If word has been defined via COMMON LAW it is to be inferred that Congress meant that terminology.

2) NOSCITUR A SOCIIS AND EJUSDEM GENERISa. Noscitur a sociis - “it is known from its associates.”

i. Light may be shed on ambiguous word by reference to words associated with it. (Look at word in context of the sentence structure, words around it).

ii. Jarecki v. G.D. Searle & Co. 1. STATUTE: exploration, discovery or prospecting Here, discovery is

only limited to mineral resources (not scientific or technological discoveries)


b. Ejusdem Generis “Of the same kind, class, or nature.”i. When general words follow specific words, those general words are limited to

embracing only objects similar in nature to those specific words.1. Heathman v. Giles Prosecutor not held under law which applied to

“police officers, sheriffs, constables or other persons charged with duty of enforcing criminal laws of the state.” NOT OF THAT CLASS!

ii. REQUIRES A JUDGMENT AS TO WHAT MAKES ALL OF THE STATED THINGS SIMILAR! So, judicial discretion!

c. These canons have no value if the statute evidences a meaning contrary to their presumptions.

3) EXPRESSIO UNIUS:a. “Expression (or inclusion) of one thing indicates exclusion of the other.”b. Enumeration of certain things in a statute suggests that the legislature had no intent of

including things not listed.i. US v. Marshall – Easterbrook notes that PCP has a distinction made between

“pure” and “mixture,” so therefore believes that “mixture” language for LSD allows for it to be mixed with carrier.

c. Stands on presumption (faulty?) that all possible alternatives were considered and then rejected by the legislature.

d. Might consider normative context.

GRAMMAR CANONS:1) PUNCTUATION RULES:

a. THREE FORMS:i. Punctuation forms no part of the statute (strict English rule)

ii. Allowing punctuation as an aid in statutory construction.iii. Looking on punctuation as a less-than-desirable last-ditch alternative aid in

statutory construction MAJORITY RULE!b. Rarely controlling.

2) REFERENTIAL AND QUALIFYING WORDS: THE LAST ANTECEDENT!a. Qualifying words or phrases only refer to the last antecedent unless contrary to

apparent legislative intent.b. Can be trumped by the punctuation rule COMMAS ARE KEY!

3) CONJUNCTIVE VERSUS DISJUNCTIVE CONNECTORS: THE “AND” VERSUS “OR” RULE:a. Cats, dogs, or monkeys = disjunctive, all are separate…you might be able to fine for what

happens to any one.b. Cats, dogs, and monkeys = conjunctive.c. LINGUISTIC ISSUES common parlance where and might mean or, vice versa.

4) MANDATORY VERSUS DISCRETIONARY LANGUAGE: “MAY” v. “SHALL”a. Shall = mandatory language, courts interpret the statute to exclude discretion to take

account of equitable or policy factores.b. May = discretionary.c. AGAIN, EXCEPTIONS WHEN LEGISLATIVE INTENT!

5) Golden Rule (Against Absurdity)a. “Interpreters should adhere to the ordinary meaning of the words used, and to the

grammatical construction, unless that leads to any manifest absurdity or repugnance, in which case the language may be varied or modified , so as to avoid such inconvenience, but no further.


6) Courts should revise scrivener’s errors.a. RATIONALE: Even the enacting Congress would identify this to be an error, and they

would then fix it if it came to their attention!i. Shine v. Shine Determine that statutory language was a mistake and the

Court corrects it as such!b. Inconsistent with New Textualism.c. ARGUMENT AGAINST IT: This results in a lazy congress that doesn’t check its work for

mistakes and lets Judiciary deal with it instead!i. Might be a convincing case for Increasing Miseration!

7) “The Dog That Didn’t Bark” Rule:a. Favorite of Justice Stevens.b. Stevens believes that a change is to be made in a substantive rule, then we will see

some evidence of Congress debating that in legislative history.i. Absence of that type of debate is evidence that Congress did not intend to

change that particular rule.ii. This is a TOOL that can be used: “Make change to statutes more difficult.”

THE WHOLE ACT RULE:1) Context of relevant language within WHOLE statute.2) Interpret a statute like you interpret the Bible, as the WORD OF GOD!3) The interpreter must presume that the legislature drafted the statute as a document that is

internally consistent in use of language and in how the provisions work together.4) SPECIFICS:5) TITLES:

a. Traditional English Rule Titles not used in interpretation.b. Not done anymore most States have laws requiring the legislated enactment to have

a title that gives ACCURATE NOTICE of content of the law.6) PREAMBLES AND PURPOSE CLAUSES:

a. May be resorted to discover intention of law maker Not controlling over enacting part of the statute.

b. Sutton v. US Airlines myopic vision a disability? NO, Court notes that preamble states that 43 million people have disabilities…much lower than the number of people with vision problems.

7) PROVISOS:a. To be strictly and narrowly construed.

8) The Rule to Avoid Redundancy:a. No provision should be construed to be entirely redundant.b. This might be crazy, since so many words are added to Statutes that sometimes

redundancy is inevitable.9) Presumption of Consistent Usage – And Meaningful Variation:

a. It is reasonable to presume that a phrase means the same thing in every part of the act.b. Also, if phrase used in like statute dealing with the same subject matter, it is likely that

the meaning of the phrase is shared between those statutes.c. Therefore, change of wording implies a change of meaning.

10) Other Statutory Canons:a. In pari materia – how a term is used or differentiated in the larger statutory context!


i. Chisom – Scalia and Stevens dueling over how the word “representative” is used!

b. Rule Against Redundancy: You don’t interpret Paragraph A to render Paragraph D meaningless.

SUBSTANTIVE CANONS:1) AVOIDANCE CANON:

a. RULE: If a statute may bring up a potential violation against the Constitution, do not interpret that statute in a way that perpetuates that conflict.

b. National Labor Relations Board v. Catholic Bishop of Chicago:i. RULE: In the absence of a clear expression of Congress’s intent, the court will

not construe an act of Congress in a manner that would raise serious constitutional question.

1. Does not even require ambiguity!2. NLRB’s jurisdiction over labor disputes of Catholic schools may conflict

with the Establishment Clauses of the First Amendment!ii. BRENNAN DISSENT An important safeguard in this canon is that the court’s

construction must be “’fairly possible” and “reasonable.” (in line with INTENT of Congress as expressed through legislative history).

1. In light of Act’s legislative history, the wording of the act, and Court’s precedents, the majority’s interpretation is not “fairly possible.”

a. House specifically rejected an amendment to the act that would have made it fit in with the Majority’s conception.

c. Gregory v. Ashcroft:i. RULE: If Congress intends to alter the usual constitutional balance between

states and federal government, it must make its intention to do so unmistakably clear in the language of the statute.

1. O’Conner In order to respect federalism’s balance between the powers of state and federal governments, courts will not construe an act so as to impose federal law on the states in areas of traditional state authority if congress’s intent to do so is ambiguous!

ii. DISSENT Plain-statement rule was an UNPRECEDENTED expansion of this doctrine not justified in this case because a straightforward analysis of the act is sufficient to exclude state judges.


d. Before you apply avoidance, have to identify how serious the constitutional problem is

i. And then figure out what you do with that problem:1. Do you have to reach another meaning2. Or look for evidence that congress intended that meaning

ii. How far can you stretch the text to get a different meaning e. Bridging the gap: filling in when the court doesn’t know if there’s a constitutional issuef. Lots of reasons to be skeptical of the avoidance canon, but that doesn’t mean it isn’t

really importanti. This kind of work at the margin is a principle way for the supreme court to

determine constitutional norms ii. Vehicle for the courts to take into account and decide constitutional issues

without seeming like they’re doing sog. Justifications:

i. Courts tracking legislators preferences by applying avoidanceii. There are certain under-enforced constitutional norms

iii. Avoidance Decisions are LESS Costly in some ways than outright Constitutional decisions!

1. Direct rulings of Unconstitutionality results in public backlash and popular majorities and congressional majorities might slap this back down.

2. So this is a way to enforce Constitutional values without POLITICALLY COMPROMISING ANYTHING!

h. can the avoidance canon be applied to the executive?i. Not showing disregard for the intent of congress

ii. Under-enforced constitutional norms: may also apply to the executiveiii. Passive virtues- not really relevant

2) SOME OTHER SUBSTANTIVE CANONS WORTH NOTING:a. Canons Concerning Sovereignty:

i. In interpreting statutes that implicate sovereignty of the US, the Court will interpret the statute NARROWLY (in favor of the us)

1. US is immune from money judgments but there are exceptions to this immunity.

ii. Statutes that may tread on foreign sovereignties (Indian tribes) are interpreted narrowly so as not to mess with those sovereignties.

iii. WHY? 1. Minimizing frictions within the government and Court does not want to

be source of tensions in foreign affairs.2. INTEREST GROUP ANALYSIS! Concentrated benefits and distributed

costs for those exceptions of suing the US government, thereby they would interpret this narrowly!

b. Rule of Lenity:i. Read criminal statutes and liability narrowly out of notice concerns and due

process concerns and way to cabin discretion of enforcement.


ii. Background libertarian presumptions underlying the Constitutional development!

COMMON LAW AND STATUTORY TEXT:1) Common law can provide a gap filler default rules when statutes leave out

elements!i. “We have often looked to the common law as it existed in 1871, in the belief

that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar.” – O’Conner in Smith v. Wade.

1. REMEMBER – Current battle between whether or not to use modern common law or common law “of the day!”

a. Smith v. Wade:i. ISSUE: What is the proper standard for conduct

(malicious intent or recklessness) that justifies punitive damages according to §1983 of the Civil Rights Act of 1871.

ii. Though this act created a type of tort liability, there was little in legislative history concerning the damages recoverable for this type of tort liability.

iii. Therefore, look to the common law of torts with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute:

b. So Approaches to the common law?i. MAJORITY: Uses Common Law to show that reckless

disregard is suitable for punitive damages.1. Uses MODERN COMMON LAW!

ii. HOWEVER, DISSENT: Common Law standards should be used only to demonstrate the LEGISLATIVE INTENT OF CONGRESS AT TIME OF ACT!

1. COMMON LAW AT THE TIME OF ENACTMENT!iii. O’CONNER: Nobody wins the battle of the string

citations when there is divided contemporaneous judicial opinions!

1. THEREFORE, we should rely on policy considerations!

2. CAN BE USED IN CONJUNCTION WITH PURPOSIVISM!3. Moragne v. States Marine Lines:

INJURY AND DEATH IN TERRITORIAL WATERS INJURY AND DEATH ON HIGH SEAS

NEGLIGENCE Jones Act Jones Act


UNSEAWORTHINESS

Left to State Law (in general, State laws allow for liability EXCEPT for Florida). Death on High Seas Act

a. Moragne falls into the bottom-left area, and furthermore, into the area where Florida does not allow recovery!

b. So why does the Court decide that it needs to fill this small gap through a common law remedial move that is done by analogy to the death on the high seas act?

i. It’s providing a JUDICIALLY CREATED REMEDY BY ANALOGY TO COMMON LAW (“Spirit of the statute.”)

STATUTORY CONTEXT (In Pari Materia Rule):1) HORIZONTAL VIEW: Parallel Legislation.

a. Statute can be interpreted to be coherent according to overarching Congressional purpose:

i. Sometimes a literal interpretation of a statute is not a safe guide to statutory meaning and should be disregarded when it defeats manifest purpose of the statute as a whole.

ii. Cartledge v. Miller – An overall congressional purpose not to interfere with the state’s power to enforce family support obligations may be gleaned from judicial interpretation of exemption provisions in other statutes.

1. Judicial interpretations of exemptions in Veterans Benefits Act and Railway Retirement act show that this purpose exists!

2. Therefore, it is likely that this exemption provision is MEANT to protect a person and those dependent upon him from the claims of creditors, not to insulate a breadwinner from the valid support claims of spouse and offspring.

b. When Congress adopts a new law incorporating sections of a prior law, Congress is presumed to be aware of an administrative or judicial interpretation given to the incorporated law, at least insofar as it affects the new statute.

i. Lorillard v. Pons Since Congress directed that the ADEA be enforced in accordance with powers, remedies and PROCEDURES of the FLSA, then it follows that the judicial interpretation that there was a private right to a jury trial pursuant to the FLSA would carry over to the ADEA.

c. CRITICISMS OF THIS SCHOOL OF THOUGHT:i. What if there are several statutory analogies? Might make the interpretive

process far more difficult, and this situation arises far too often.ii. Different Statutes, Different Policies New statute may embody policies or

compromises subtly different from those in the original statute – if for no other reason than different political context.

iii. The Possibility of Compromise AIt may undermine deliberative legislative compromises.

iv. Why should Court do the work of Congress by essentially writing provisions into statutes?

2) VERTICAL VIEW: Subsequent Legislation and Implied Repeals.


a. CANON AGAINST IMPLIED REPEALS: Not in favor of subsequent legislation impliedly repealing previous legislation.

i. COUNTER “Last in Time Rule,” the more recent passed legislation takes precedence over any older legislation that it contradicts.

b. But how strongly do we apply this canon?c. Branch v. Smith – 3 Possible Approaches:

i. O’Conner:1. Applies the Canon VIGOROUSLY!2. We should be reluctant to turn back!3. The OLDER RULE SHOULD BE GIVEN MORE POWER AND NEW ONE

SHOULD BE INTERPRETED NARROWLY!ii. Stevens:

1. Look everywhere for evidence of an implied repeal.2. What evidence?

a. Any evidence that shows CONGRESS’S INTENT!b. Legislative history – failed attempts at repeal show that

legislators intended for this new provision to supersede the old one.

c. Expressio Unious – Specific exceptions for particular states.iii. Scalia:

1. Torture the text to come up with a reading of both statutes that minimizes the implied repeal and makes room for both provisions in the modern statutory context.

LEGISLATIVE HISTORY:1) CONGRESSIONAL/COMMITTEE REPORTS:

a. How should we use them? 3 VIEWSb. VIEW ONE: AS DISPOSITIVE OF CONGRESSIONAL INTENT:

i. Committee reports may be used as a basis for statutory interpretation in effectuating legislative intent.

ii. Blanchard v. Bergeron –Uses judicial cases cited in a committee report to decide how the legislature intended to define “reasonable” damages.

c. VIEW TWO: AS TOOL FOR DECODING WORD OF THE STATUTE:i. When statutory language is clear, evidence of contrary legislative intent in a

congressional report cannot be used to contradict that clear meaning.1. Legislative history can only be used to illuminate or clarify the

language of a statute.ii. In Re Sinclair The language was clear, therefore evidence of a contrary

legislative intent in a congressional report cannot be used to contradict that clear meaning.

d. VIEW THREE: COMMITTEE REPORTS ARE BAD BAD BAD1) Scalia on Blanchard Legislators don’t KNOW what’s in the leg. History!

a. RESPONSE Many laws enacted that legislatures have not read all the way through, and there are plenty of circumstances where we accept the fact that legislative agents themselves have agents


(presidents have lawyers; Judges have clerks, etc.). So why should this be more important here?

2) Reliance on legislative history distorts the legislative process (when interest group sneak things in) and then distort the judicial process because they will be enforcing the unenacted interest of powerful interest groups.

a. Nobody doubts that leg. History might be useful! Value of it is therefore seen here to be outweighed by the risk of bias! Proposition of fact that may or may not be true!!

Why Scalia (and sometimes Easterbrook) hate Legislative History:3) JUDICIAL BIAS Judges can use leg history to make their own interpretation of what the laws

should be, the law of the land!4) Efficiency We would be ALL better off if they did not rely on leg. History because that would

cut out the costs of legislative history and curb costly production of legislative history.5) Constitutional Objection Article 1, §7 sets up Bicameralism and presentment, and to rely on it

would rely on a faction within the legislature that has not been subject to bicameralism and presentment.

a. From Chadha, where things lacking in presentment and bicameralism!’b. Huq thinks this is the most important argument!c. Chadha rule Piece of legislation was a violation of bicameralism and presentment if

the Act has the purpose and effect of altering the legal rights, duties, and relations of persons!

d. Therefore, the more sources that a judge uses, the less we feel the pinch of bicameralism and presentment problem!

i. Is there a faction of the legislative body changing the legal rights, duties and relations of persons through legislative history? If being used in that way, then you might be able to make this argument!

ii. Different uses of legislative history might be more acceptable!

FUTURE CONGRESSIONAL OCCURRANCES:1) SUBSEQUENT LEGISLATION:

a. Can be significant!b. FDA v. Brown & Williamson Tobacco Corp.:

i. FACTS:1. FDA said they had no jurisdiction.2. Subsequently, Congress created a whole separate regulatory scheme to

regular tobacco.3. FDA says they have jurisdiction!

ii. O’Conner The creation of an alternative and entirely different and contrary regulatory scheme shows Congress’s intention not to give the FDA jurisdiction

1. What history does she look at?


a. failed proposalsb. FCLAA- inconsistent regimesc. Hearings- agency statementd. Successful laws limiting another agency under another

statutes e. Agency actionsf. Other laws (e.g. block grants)

iii. DISSENT Rather, Congressional inaction does not show a POSITIVE DESIRE TO STRIP FDA OF JURISDICTION.

1. Congress never explicitly denies the FDA jurisdiction.2. Rather they created a contingency since the FDA chose not to exercise

jurisdiction.2) WHAT ABOUT SUBSEQUENT NONACTION?

a. Aquiescence Rule – Nonaction by congress becomes significant in that it shows Congress acquiescing to the interpretation of law done by agencies and judiciary.

1. EFFECT shifts interpretive power away from congress (who cares about legislative history and congressional intent?) to agency and judicial interpretations.

ii. Bob Jones University v. US:1. RULE: An authoritative agency or judicial interpretation of a statute is

correct where Congress is aware of the interpretation and takes no action to amend the statute.

a. Majority Failure of Congress to modify the IRS ruling of which Congress was, by its own studies and public discourse, constantly reminded as well as Congress’s awareness of the denial of tax-exempt status for racially discriminatory schools when enacting other and related legislation make an unusually strong case of legislative acquiescence in and ratification by implication of the rulings.

b. HOWEVER – Alternate view in dissent Where Congress has shown time and time again that it is ready to enact positive legislation to change tax code, the Court has NO BUSINESS finding that Congress has adopted a new IRS position by failing to reverse it.

IF YOU DO ACCEPT UTILITY OF LEGISLATIVE HISTORY (NOT PERSUADED BY SCALIA)…HOW TO USE IT?1) Evidence of the enacting coalition’s intent re: the Statute!

a. This is a little more complex than the intent of the median legislator!b. Complex Different majority coalitions for different parts of Statutes!c. Looking for something in evidence of enacting coalition, but don’t treat that as the

single approach of the single median legislature!d. SO…

i. Is leg. History available?1. Not HIDDEN from voting body! That stuff is not helpful (DOJ memos, for

example).ii. Relevant?

1. Does it speak to the problem?


2. Often, a trade-off between reliability and relevance!iii. Reliable?

1. Can’t pay too much attention to things from the early stages before the enacting has been built

2. After the bill has attained momentum, you shouldn’t really on that history because it may be nothing more than cheap talk.

e. There is always the danger that legislative history is cheap-talk. Conversations on the floor of senate are irrelevant because they come TOO LATE! Don’t tell us what enacting coalition wanted to do!

f. BEST EVIDENCE IN LEG HISTORY:i. Veto-gates!

ii. Drafting history of the bill: how did it change has it moved through the house and the senate

iii. Sponsor statements on the floor.

RETROACTIVITY:1) JUDICIAL RETROACTIVITY:

a. James B. Beam Distilling Co. v. Georgia RULE: retroactivity of judicial decisions, including constitutional decisions, is overwhelmingly the norm because it is keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the norm.

i. Scalia Judges “find” the law, they do not create it.b. Harper v. Virginia Department of Taxation:

o RULE: Strong general rule for retroactivity- as if it’s always been the law

1. Retroactivity applies to any case that has not reached final judgment

2. WHY? Part of the reason is to prevent the substantive law of the land to spring and shift according to the particular equities of individual parties’ claims of actual reliance on an old rule.

a. Predictability and stability under the law!2) LEGISLATIVE RETROACTIVITY:

a. General presumption against legislative retroactivity.b. Landgraf v. USI Film Products:c. RULE: When a legal change attaches new legal consequences to acts that occurred

before the law was enacted, then there is a presumption against retroactivity unless Congress is EXPLICIT about it!

i. Application?1. Procedural rules in general shouldn’t be retroactive2. Laws that attach legal consequences to acts before the law;

congress has to state specifically that they mean it to apply retroactivity

a. EXAMPLES:b. When intervening statute affects the propriety of prospective

relief, not retroactive.c. Changes to compensatory damage schemes


i. The type of legal change that would have an impact on private parties’ planning and thus NOT retroactive.

d. Changes to PUNITIVE DAMAGES i. They share key characteristics with criminal sanctions

and therefore should not be retroactive.3. HOWEVER – what can be prospective?

a. Laws that effect determinations collateral to the main cause of action and uniquely separable from the cause of action to be proved at trial.

i. Bradley – Declares a law changing attorney’s fees retroactive.

ii. WHY? – Principle that a court is to apply the law in effect at the time it RENDERS its decision, unless doing so would result in manifest injustice or statutory direction or legislative history to contrary.

3) Concerns about retroactivitya. Problem that a rule that is purely prospective can have huge influence on past

investments i. can’t gauge the economic effect of a new rule

ii. people act in reliance on existing laws, even if it applies to only transactions that arise in the future

b. why do we treat courts so differently from legislatures?i. The responsibility of coming up with new rules is the province of the

legislatureii. Ideas about distribution of authority between courts and legislatures

c. Worry about legislatures getting upset and punishing conduct that’s already occurred

i. Suspicion of retroactive legislation ii. Presumption bound in Madison’s image as leg. majorities as being swept

up in momentary passions.iii. Landgraf – The legislature’s “responsivity to political pressures poses a

risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.”

IMPLIED RIGHTS OF ACTION:Primary jurisdiction: applied to claim originally brought as court actions but in fact requiring resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case the judicial process is suspended pending referral of such issues to the administrative body for its views.

Cort v. Ash (1975): Brennan creates a 4-part test for determining if a private remedy exists1. Is plaintiff one of the class for whose especial benefit the statute was enacted?2. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or

deny one?3. Is it consistent with the underlying purposes of the legislative scheme to allow such a remedy for

the plaintiff?


4. IS the cause of action one traditionally relegated to state law therefore, inappropriate to give a remedy under federal law?

a. Stoneridge – Court there was concerned that creating a cause of action under federal law would intrude into an imagined field of State contract law, which is free of concern and uncertainty about Federal law!

Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. (2008)1971- court decides there’s a private right of action under §10(b) of the 34 Act

but no private right of action to sue the aider and abettor Congress knows how to create a private right of action and they did not do so here.

Expressio unis The law is a deal, and the court has no place adding into it

Political theory reason why we should stick to the text and the text alone

Does recognizing a private right of action effect states rights? But it’s assumed that federal law preempts any state regulations Not like there’s a state law remedy that’s being supplemented

o People in state contract markets have to be worried about liability repercussions under federal securities law if they’re dealing with securities

Federal government can’t stick its fingers into the independent realm of state contract law

o Preserving state common law- shouldn’t be changed unless there’s a clear statement

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