Legislation Outline Rao 2011

Introduction

How a Bill Becomes a LawIn the House of Representatives

1. Group like legislative staff or interest group drafts a bill or resolution2. Bill is introducted by Congressman.3. Bill is reffered to standing committee4. Committee acts:

a. can be referred to subcommitteeb. hearings are held on some major billsc. committee can resolve to:

i. take no action, ii. defeat the bill,

iii. accept or iv. amend and report the bill the full House

5. Discussion of the bill is placed on one of the major calendars:a. Union (for appropriations and review)b. House (public)c. Discharge (when bills must be extracted from committee)

6. The Rules Committee may have to discuss the bill in a closed session7. Floor action, which results in either:

a. passage – which sends the bill to the Senateb. defeat – your life and your quest end here, bill.

In the Senate1. The bill is referred to a standing committee2. The Committee takes actions like the House committee3. There is floor action like in the House4. If the House and Senate pass differing versions of a bill, a conference committee can be

created with members from each house; each House must agree to the conference report.5. The bill is signed by the Speaker of the House and the President

President1. The bill is then presented to the president, who may:

a. sign the billb. veto the billc. allow the bill to become law without his or her signature ORd. use a “pocket veto” after adjournment.

Parliamentarians – nonpartisan Congressional employee who determines which committee has the “most compatible” jurisdiction over an issue to consider a bill, using a “weight of the bill” test.power of negation – power to kill a bill in committee, usually held by the chair of the congressional committee which has jurisdiction over the bill.discharge petition – way to get a bill out of committee and before the full house for a vote.

suspension of the rule – allows the House to consider a bill without amendment or motions; requires the consent of the Speaker and the House to pass the bill with a 2/3rds majority.

Interpretive Issues and Political TheoriesGriggs v. Duke Power CompanyF: Willie Griggs filed a class action, on behalf of several fellow African- American employees, against his employer Duke Power Company . Griggs challenged Duke's "inside" transfer policy, requiring employees who want to work in all but the company's lowest paying Labor Department to register a minimum score on two separate aptitude tests in addition to having a high school education. Griggs claimed that Duke's policy discriminated against African-American employees in violation of Title VII of the 1964 Civil Rights Act. On appeal from a district court's dismissal of the claim, the Court of Appeals found no discriminatory practices. I: Did Duke Power Company's intradepartmental transfer policy, requiring a high school education and the achievement of minimum scores on two separate aptitude tests, violate Title VII of the 1964 Civil Rights Act?PH: The lower court held that Duke Power can use high school diplomas and IQ tests as prerequisites to employment advancement, due to the statements of a congressman who amended the Civil Rights Act to include language that would give employers latitude to use general aptitude tests for advancement.H: A facially neutral employment practice that was not discriminatory in purpose is nonetheless unlawful if it has the effect of excluding a group on the basis of race and without a strict showing of business necessity.REASON: Neither the high school graduation requirement nor the two aptitude tests was directed or intended to measure an employee's ability to learn or perform a particular job or category of jobs within the company. The Court concluded that the subtle, illegal, purpose of these requirements was to safeguard Duke's long-standing policy of giving job preferences to its white employees.

Theories of LegislationAll the theories of the legislative process can trace their origins back to Madison. Specifically, his thoughts laid out in Federalist Nos. 10 & 51.

Federalist No. 10Legislation regulates the conflicting interests of different segments of the population.

Federalist No. 51The federal legislative process is a way for a diverse coalition of self-interested minorities to regulate, which prevents a single majority interest from controlling the nation.

Pluralism and Interest Group TheoriesPluralism

Pluralism is the spreading of political power across many political actors.generally sees interest groups as a good thing.

Interrelated propositions and definitions:1. Citizens organize into groups for political action.

2. Interest group politics result in an additional check on the government by distilling expertise and engagement in a non-government organization.

3. Politics can be conceptualized as the process by which conflicting interest-group desires are resolved.

PROBLEM: The rational response for an individual is to free-ride on the political actions of others, since individuals cannot effectively influence policy decisions. Therefore, individuals are not likely to join interest groups until that individual has a large enough interest, often due to a personal stake in the legislation.Small groups are more successful than large ones, because members can more easily police the activity of other members.

Consequently, small interest groups often dictate policy to the majority, contradicting Madison’s conception of the majority controlling policy at the expense of minority groups.

BUT it is often large political groups that are funding these small, successful political groups.Large groups form successfully often because they offer a selective benefit (like AARP discounts) a purported benefits (like Sierra Club calendars), or a solidarity benefit (like PBS tote bags).

Public Choice TheoryBasically law and economics applied to politics

as rational wealth maximizes, politicians will do everything they can to be reelected in order to maintain their access to wealth and powerit's a way of looking at the political arena as a market placeSupply and demand of public choice theory:

demand - the desire of voters for action on a political issue OR the desire of public interest groups, etc.supply - the ability to affect public policy OR it is just rhetoric on a public policy OR the ability to prevent changes in public policy.

Assumptions:the actors are self-interestedthat politics is a zero-sum game in which there is no abstract good that can be accomplished.

ergo, there are trade-offs necessary Downsides of this theory:small groups control public policy because the rational voter doesn't vote, as he or she realizes that his or her vote will be balanced outtoo much rent seeking legislation.What is a legilative failure and, if one could identify it, should one attempt to fix it?

Wilson Cost/Benefit dichotomy (p.57)the tables don't have a lot of predictive value, but do a good job of describing the types of legislationI. Distributed benefits/distributed costslike national security or criminal lawsmost tax bills fit into this categoryII. Distributed benefits/concentrated costs

like anti-pollution laws or employment lawsbills that result in regulations are often from this categoryIII. Concentrated benefits/distributed costslike bills that result from a single interest groupIV. Concentrated benefits/concentrated costslike bills that result from special interest groups on both sides

Critique of Pubic Choice:Role of interest groups is too complex to be easily modeled. Legislators are not just motivated by reelectionEmpirical evidence suggests that ideology is a better predictor of how politicians vote than prospects for reelection.Ergo, you can use an economic model to explain how politicians behave, but that model does not predict well.

RepublicanismIt is the rule by many (as opposed to despotism), which results in compromiseRepublican values:deliberative bodies, like legislature, which, through deliberating, can reach ideas that result in a public goodan informed constituancy

Republicanism and proceduralismProf. Rao does not think that Republicanism really belongs here, but I'm not sure ... in that the procedure is the focus of republican theory whereas individual behavior is the focus of ration choice and pluralism theory

Problemsit may not be a realsitic positive theory of political behaviorin that the corresponding debates are not substantiveit may avoid cynism but fall prey to romanticismdialogue may not be the solution to all problemspolicians may choose to regulate individual behaviors because they believe that they are privileged when it comes to making informed decisions.

Consequences of Legislative Theory for Judicial InterpretationEasterbrook, Posner, and other PE theorists suggests that courts should exercise greater oversight because politics is run by special interests.If legislation is a compromise, then judges should simply enforce the bargain.If legislation is more rent seeking, maybe judges should not enforce naked rent seeking statutes.Judicial review for minority groupsCaroline Products fn 4 suggest there should be greater review for minoritiesBUT public choice theory suggests that minorities are more often the beneficiaries of the legislative processProf. Rao suggests that affirmative action is an unexpected outcome of the Caroline Products footnotebut it seems like it has a rational connection ...Posner and Landis's article "The Independent Judiciary and ..."

Court remains independent by upholding the legislative deal rather than creating public policy themselves.Judges do this because it is too costly for them to create public policy out of whole cloth.

Referendum Politicsspecial interest groups still affect the outcomeHow do courts interpret public policy decisions that result from referrendums?

Proceduralist Theory of LegislationLegislative procedures make it difficult to enact statutesb/c it's good to avoid laws that react to fleeting passions

Voting ParadoxesSocial choice view that political outcomes from votiing are inherently incoherentit is impossible to design a voting system the meets all the requirements of fairness and justicewhatever results come out of the voting procedure Condorce "winner"a stable winner, which maintains no matter the permutationsIF an order of perferences for voters do not match up exactly, there is no way to reach "condorce winners."Strategic v. sincere votingOne can vote strategically, in that they don't vote for what they want, but they vote against things they don't want at (perhaps) the expense of what they do want.All of this leads to instability, which attracts interest groups.also leads to coalition buildingboth things lead to an ability to control the outcome of the votingParadoxes lead to a focus on institutional design in order to minimize "voting pathologies."The Article 1, Sec. 7 game - how a bill becomes a law and the game theory behind it.

Textual Cannons of Statutory Interpretation

Maxims of Word Meaning and AssociationOrdinary Meaning

Dictionaries are often introduced for the court to take judicial notice of.The debates around ordinary meaning center around whether or not the area of commerce in question shares the dictionary meaning of a term in controversy.

Noscitur a Sociis and Ejusdem GenerisNoscitur a Sociis – it is known from its associates

When two or more words are grouped together, and ordinarily have a similar meaning, but are not “equally comprehensive,” the general word will be limited and qualified by the special word.

Ejusdem Generis – of the same kind, class, or nature.Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objective enumerated by the specific words.

also, where specific words follow general words, the doctrine restricts application of the general term to things that are similar to those enumerated.

Expresso UniusExpressio unius est exclusio alterius – the expression of one thing indicates exclusion of the other.

also works for “the inclusion of one thing indicates the exclusion of the other.”This cannon is very troublesome, and rarely results in the correct outcome. For it to be true, it would require that the drafters of legislation to think about all the possible outcomes of the statutory language. This just is not the case – most legislatures write what they can in the time they have, leaving it up to the courts to “fill in the gaps.”

Grammar CannonsThe legislature is presumed to know and follow these basic conventions of grammar and syntax.

Punctuation RulesThree possible rules:

1. punctuation forms NO part of the statute2. punctuation is an aid in statutory construction3. punctuation is an undesirable, last-ditch alternative aid in statutory construction.

MAJORITY RULE: The last one.

Referential and Qualifying Words: The last Antecedent RuleReferential and qualifying words or phrases refer ONLY to the last antecedent, unless contrary to the apparent legislative intent derived from the sense of the entire enactment. (XX????XXX)

UNLESS: A comma proceeds the qualifying or referential phrase OR the statutory context negates it.

Conjunctive versus Disjunctive Connectors: And vs. OrTerms connected in the disjunctive are often read to have different meanings and significance from one another.

Mandatory versus Discretionary Language: May vs. ShallWhen statutes use mandatory language, courts often interpret the statute to exclude discretion to consider equitable or policy consideration.

Singular and Plural Numbers, Male and Female PronounsUnless otherwise stipulated, singular words refer to plurals as well, vice versa, and “he” and “she” are interchangeable.

Most states have statutes that say this (and most lawyers include this when drafting interrogatories!)

The Golden Rule (Against Absurdity)Golden Rule – statutory interpreters should adhere to the ordinary meaning of the words used, and the grammatical construction, unless that would lead to a manifest repugnance, in which case the language may e varied or modified, so as to avoid such a result.

It’s an “absurd results” exception to the plain meaning rule.Courts reverse scrivener’s errors in this manner.

The Whole Act RuleMaxims based on the context within the statute of the relevant language.

The Whole Act Rule is the most realistic in view of the fact that a legislature passes judgment upon the act as an entity, not giving one portion of the act any greater authority than another.

Therefore, interpreting any part of an Act in isolation is a violation of legislative intent.SCOTUS follows the WAcR.

WAcR assumes coherence – the interpreter presumes that the legislature drafted the statute as a document that is internally consistent in its use of language and in the way its provisions work together.

HOWEVER, statutes are usually cobbled together over time.Titles are considered when interpreting Acts, but they do not control over the plain words of the statute.Preambles have no greater interpretary weight than any other part of the statute.If there is doubt about the meaning of Privisos, they are to be narrowly construed.

The Rule to Avoid RedundancyThe presumption is that every words and phrase adds something to a statute.

Therefore, no word should be construed to be redundant or to make other provisions redundant.HOWEVER, as a practical matter, legislatures add redundant language to statutes all the time.

So, the RtAR is not in accord with most legislative intent. For this reason, SCOTUS refused to follow the rule in Gutiterrez v. Ada (2000).

Presumption of Consistent Usage and Meaningful VariationIt is reasonable to assume that the same meaning is implied by the use of the same expression in every part of the Act.Plus expressio unis = “where Congress includes particular language in one section of a statute but omits it in another … it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v. U.S. (SCOTUS 1993).

EXCEPT, in the application of the negative implication, where there is a reasonable explination for the varation in language. Field v. Mans (SCOTUS 1995).

Rule Against Interpreting Provisions in Derogation of Other ProvisionsWays that two provisions could conflict:operational conflict – direct conflict between the way two provision operatephilosophical tension – assumptions behind provisions conflictstructural derogation - a given provision’s interpretation might be at odds with the overall structure of the statute.

Political EquilibriumNot a textual cannon, but a substantive cannon through which courts give deference to the legislature or other political body (like a regulatory association) which passed the statute in question.

Statutory default rules – ElhaugeSince many cannons of construction cannot be justified as anticipating legislative preference, there must be something else going on. This something else is that the judiciary is attempting to force the legislature to be more explicit in the construction of statutes by interpreting statutes in a certain way, called the preference-eliciting cannon.

Preference-Eliciting CannonsThree necessary conditions:

1. the estimated preferences of the drafters are unclear2. there are significant differential odds of the legislature redrafting the statute given the

different readings3. any interim costs from lower immediate expected political satisfaction are acceptable.

Types of preference-eliciting cannons: ejusdem generis experssio unis plain meaning

Preference-Estimating CannonsThe traditional use of cannons. Used when the drafters intent is clear and/or there is significant information available to estimate the intent of the drafters.Examples of preference-estimating cannons: The opposite cannons to the three listed above.

Substantive CannonsCannons whose applications are NOT policy neutral.Today, statutes that deal with certain subjects (like civil rights, securities, and antitrust) are usually liberally interpreted.

Whereas statutes that impose criminal penalties are usually strictly construed.There is also a whole list of specific areas where statutes are strictly construed (like in public grants) and where they are liberally construed (like in ?).

Presumption of Rules of ThumbDerived from the Constitution, federal statutes, and the common law, courts will presume that congress intended to incorporate a given exception in to statutes in a given situation.

These presumptions are rebuttable.Like the presumption that Congress does not intend to violate international law.

Clear Statement RulesPresumptions that can only be rebutted by clear language in the text of the statute.

SCOTUS uses this to express quasi-constitutional values.Substantive Cannons may be used as:

1. merely a tie-breaker2. presumptions that set up an outcome which can be overcome by persuasive support for

the counter position3. clear statement rules which compel a certain outcome unless there is a clear statement to

the contrary contained in the statute.a. The text calls rules that require a clear statement in the text of the statute “super-

strong clear statement rules”

Rule of LenityCriminal laws must be construed strictly.Embedded in American law by the Marshall court.Justifications:

Notice Mens rea requirement Separation of powers (non-delegation) - the creation of crimes is the role of the

legislature, not the judiciary

This rules is most appropriately applied to criminal laws that are “bad by edict” rather than “bad by their very nature.”

Constitutional AvoidanceIf a statute is ambiguous and one possible interpretation raises an issue that might be unconstitutional, the court should avoid this issue by choosing the interpretations that do NOT raise the possible unconstitutional issue.

Restated: "Do not impose a decision that causes constitutional problems unless Congress has explicitly stated that it wants to tackle the constitutional problem."

Examples:In US v. Witkovich (SCOTUS 1957), the court avoided the constitutional issue by reading the "reasonableness" requirement from the fourth clause of the statute in question into the third clause, which was the clause at issue.In Dept. of Commerce v. U.S. House of Representatives (SCOTUS 1999), the Court interpreted the statutory amendment at issue to be consistent with an existing part of the statute which prohibited the use of sampling in the census, thus avoiding the issue of the constitutionality of sampling in the census.

New Federalism CannonsThe Rehnquist court developed a doctrine which requires “clear statement” interpretation of statutes in order to reflect that constitutional reference of all non-delegated powers are reserved to the state.

Gregory v. Ashcroft is the ur example. This case was a reaction to the Garcia decision which overturned the rule that reserved certain exemptions for the state government from federal employment laws. Justice O’Conner held that Congress must clearly state that it intends to impign on a state power.

Legisprudence and Statutory Doctrine: Vertical versus Horizontal Coherence in Statutory LawVertical Coherence – statutory interpretation that is coherent with past authoritative sources.

important to formalistsHorizontal Coherence – when a statute is consistent with the rest of the present existing law

a favorite of legal realists (realists consider law’s legitimacy to be grounded on present policy needs)

Legal Process Theory, based on these two principles, suggests that the public interest relies upon existing legal rules.

Stare Decisis and Statutory PrecedentsCommon law formalist theory says that the role of courts is to “declare” the law, not to change it.Stare Decisis requires that courts treat prior decisions as presumptively correct.

Reliance justification - In the name of stare decisis, and concerns about “the confusion and the retroactivity problems that would result” from overturning a bad precedent that excluded professional baseball from the reach of the commerce clause, the bad precedent set in Federal Baseball (1922) stands. Flood v. Kuhn (SCOTUS 1972).Legislative prerogative justification - “Stare decisis is usually the wise policy because in most matters it is more important that the applicable rule of law be settled than that it be

settled right … provided correction can be had by legislation.” But for cases involving the Federal Constitution where correction through legislation is virtually impossible. Burnet v. Coronado Oil (1932) (Brandies, J dissenting).

SCOTUS has overruled a statutory precedent when:a prior decision held that congress impliedly precluded “municipal corporations” from the definition of “persons” in the Civil Rights Act (based on the fact that the House of Reps rejected a proposed provision doing just that). Note that the court reasoned that judicial intervention was necessary in spite of past affirmance and because of Congressional inaction. Monell v. Department of Social Services (1978) (overturning Monroe v. Pape (1961)). The reasoning in this case, however, is based more on respondeat superior rather than statutory interpretation, but the opinion does justify this statutory interpretation using legislative history.

Statutory precedents are subject to “normal” stare decisis rules (as opposed to the lenient rules applied to constitutional precedents). Patterson v. McLean Credit Union (SCOTUS 1984) (overruling Runyon v. McCrary (1976) (holding that the Civil Rights Act created a cause of action for racial discrimination against private parties). NOTE: A decision made by the new Rehnquist court.

Traditional justifications for overturning precedent, according to the Patterson court: Intervening development of the law through the growth of a judicial doctrine or

action by Congress the precedent is a detriment to coherence and consistency in the law due to

confusion created by an unworkable decision or the decision itself is an obstacle to the realization of objectives embodied in other laws.

the precedent proves to be outdated after being tested by experience and is found to be inconsistent with justice or social welfare

Congressional Ratification – when Congress acts in a way that judges interpret to mean they are confirming a judicial interpretation of federal legislation.A concurrence in Patterson claims that congress ratified SCOTUS’s decision in Runyon by:

failing to overturn Runyon after it was decided, reject an amendment to the Civil Rights Act that was inconsistent with Runyon, and relying on Runyon when passing legislation related to the Civil Rights Act.

Prospective Judicial DecisionsProspective overruling does not disturb parties who have relied on past precedent, but “enables the courts to solve this dilemma by changing bad law without upsetting the reasonable expectations of those who relied on it.”

This approach is contrary to stare decsisis.In James v. United States (SCOTUS 1961), the defendant was charged with embezzlement and convicted of willfully evading federal income taxes and appealed his conviction based on Commissioner v. Wilcox (1946), which held that embezzlement was not taxable.

The James court overturned Wilcox prospectively, so that the precedent still applied to the defendant, and his conviction was overruled.

A decent in James argued that the prohibitions against ex post facto laws and impairment of contracts are only applied to the legislature, and so do not restrain the judiciary.

Because there was no single majority opinions, and all the concurrences rested on different reasoning, the James decision might be sui generis (meaning in a category of its own).

From Chevron Oil v. Huson (1971), three reasons that overruling prior precedents should only apply prospectively:

the decision establishes a new principle of law if retrospective operation of the current precedent will further or retard the operation

of the rule in question if the Court’s decision could produce substantial inequitable results if applied

retroactively.Alternatives to pure retroactivity or pure prospectively: prospective application, except as to prevailing party – the new rule is applied to the

appellant, but not to other pending cases. Used in Miranda. retroactivity limited to prevailing party and pending cases – the new rule is applied to all

cases that have not yet reached a final judgment. delayed prospectively (aka “prospective prospective ruiling”) – the new rule comes into

affect at some future date (like upon the next regular session of the Minnesota Legislature in Spanel v. Mounds View Sch. Dist (Minn. 1962)).

Constitutional ConsiderationsProspective application, except as to the prevailing party might violate the equal protection of the law guaranteed by 14th Amend.Prospective application, even as to the prevailing party might violate the due process guarantees of the 5th Amend.In James B. Beam v. Georgia (1991), Scalia writes in a concurrence (in a fractured opinion) that the Marbury premise of “saying what the law is” precludes prospective ruilings, because, while judges do make law, they can only do it be “finding” what the law currently is, not by determining what the law should be and will in the future. This preclusion also serves as a check to keep the judiciary from making new law.In Harper v. Virginia Dept. of Taxation (1993), SCOTUS held that, when the Court “reserves” the question of whether a rule of law is prospective in order to make that happen.

Scalia points out, in a concurrence, that when a judge makes a decision against the prevailing law, the judge says that this law is NOT law, not that it is BAD law.

O’Conner responds, in a dissent, that Court has long recognized that “saying what the law is” is a legal fiction.

Constitutional Problems with Retroactive StatutesIf the legislature replaces an old statute with a new one, and the court then strikes down the new statute, does the old one come back into effect?

Unless the statute provides otherwise, the CL rule is that the old statute is revived and in effect if the new statute is struck down.

works the same way with a statute that derogates the CL – if the stat goes down, CL is back

The Constitution’s prohibition against ex post facto laws keeps legislatures from repealing statutes which limit criminal liability retroactively to reach acts done while the statute was in effect.Considerations that support the constitutionality of retroactive legislation:

an emergency situation (see Home Building and Loan v. Blaisdell (1934)) strong public interest requiring retroactivity – retroactivity is necessary for the

success of a statutory regime aimed at an important social policy (see Usery v. Turner Elkhorn Mining (1976) (court upheld statute that required employers to compensate

miners for black lung disease, even if the miners were not employed after the effective date).

limited abrogation of the preenactment right – the less the statute impacts a claim arising before it was enacted, the stronger the case for the retroactivity of the statute.

reasonable expectations of regulations – if someone knew that their gain of a contractual or property right was inherently unfair, it would be reasonable to make the revocation of these “windfalls” retroactive.

lack of process corruption – if there is self-dealing, the statute is not going to be retroactive. Like, if a state passes a statute removing the public employee union’s bargaining rights retroactively and then lowers the employees’ wages or benefits.

Theories of Statutory InterpretationStatutory interpretation in the hard cases involves substantial judicial discretion and political judgment.Three different theoretical approaches from the history of America statutory interpretation: intentionalism – the interpreter identifies and then follows the original intent of the statute’s

drafters purposivism – the interpreter chooses the interpretation that best carries out the statute’s

purpose textualism – the interpreter follows the “plain meaning” of the statute’s text.

From Eclecticism to Systematic TheoryPeople were debating about the extent of a court’s equity powers and their effect on statutory interpretation around the time the Constitution was passed.It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statyute, because it is not within its spirit, nor within the intention of its makers. Holy Trinity Church v. U.S. (SCOTUS 1892) (the case that bucked the plain meaning, damn the absurd results approach to statutes).

In Holy Trinity, the Court interpreted the title of the statute to make the statute only applicable to manual laborers, not to professionals like the Lutheran priest at bar. The Court reasoned that the “common understanding” of the word “laborer” does not include professionals and especially priests. The Court also pointed out that the legislature intended to pass the law in response to the hiring and importation of cheap, unskilled immigrant labor, as well as the fact that Congress chose not to substitute the term “manual labor” for “labor and service” in the bill, interpreting that to mean that Congress felt “labor and service” already expressed “manual labor.”Even if the application of a statute does NOT lead to an absurd result and the issue before the court is within the language of the statute, the statute can be construed to not reach the issue. Holy Trinity Church v. U.S. (SCOTUS 1892).Two levels of legislative intent:

Courts may inquire into the general goal of a law and tailor statutory text to meet that goal Courts may inquire as to the specific intent, that is, what the legislatures thought they were

doing when they passed that law.A progressive theory of statutory interpretation, from Pound in 1907, says that:

So long as the ordinary interpretation of a statute leads to a satisfactory result, stop there. But if the result in unsatisfactory, a judge must look beyond the text to the meaning and intention of the lawmaker, with an assumption that the lawmaker thinks as the judge does on “general questions of morals and policy and fair dealing.”

But we shouldn’t use this second step without the first step – because that would not make this genuine interpretation.Genuine Interpretation – ascertaining the meaning a speaker intended to convey when uttering a statement.Spurious interpretation – an interpretation not meant to uncover the intent of the legislature, but to “make, unmake, or remake, and not merely to discover.”

Three bad sides to spurious interpretation: it tends to bring law into disrepute it subjects the courts to political discourse it reintroduces the personal element into judicial administrationBut, it allows judges to make statutes accord with modern sensibilities when the transaction costs surrounding amendment are so high.

Imaginative Reconstruction – when a judge attempts interpretation by placing themselves in the shoes of the lawmaker at the time the statute was passed.

Learned Hand was a big fan and practitioner. (What was Fishgold v. Sullivan Dry Dock all about? The reasoning about legislative intent is just dicta, right?)

Legal Process Theories of InterpretationLegal Process Theory holds that judges should not rule based on their predilections and biases, rather they should rely strictly on the law. They should "dispassionately analyze the competing interests in particular cases and arrive at judgments based upon procedural consistency." (Friedrichs, p. 89)

Current Supreme Court Justice Ruth Bader Ginsburg is probably the most well-known proponent of this theory. It may be that this theory has lost favor due to recent generations that are more skeptical

This theory seems to suggest that all other theories of interpretation should be balanced against one another, in an attempt to achieve a just result. According to U.S. v. American Trucking Associations (SCOTUS 1940), it appears the position first looks to the text of a statute, but allows the use of legislative history as a “aid to the construction” of the statute, even if the statute does not lead to a absurd result, but an unreasonable one … perhaps it is about using legislative history as an indicator of intent and, therefore, the intended effect or scope of the statute.

Concerns about Legal Process TheoryJonathan Macey agrees with my proposition that even rent-seeking legislatures should be held to their stated public-regarding justifications in his paper Promoting Public-Regarding Legislation Through Statutory Interpretation …

Critics say that legal process judges are making value choices cloaked in neutrality. It neglects the virtues of a more formalist approach.

o which conforms closer to the Constitutiono which conforms more to the “silo’ed,” non-policy making role of the judiciary

o The “ordinary meaning” of statutes should be the privileged interpretative stance, because the plain language of statutes is what citizens rely on to be “what the law is.”

Doctrine Disfavoring Repeals by Implication – announced in Posadas v. National City Bank (1936) and applied in TVA v. Hill (1978) to save the snail darter from a federal dam that was started before the Endangered Species Act was passed.o The Court reasoned that this doctrine applies more so when the impliedly

repealing legislation comes from an Appropriation bill.

Types of Legislative History

Subsequent Legislative HistorySubsequent legislative history is rejected by textualists b/c there is less congressional monitoring and correction of misleading statements after a statute has been passed.SCOTUS decisions in the late 70s and 80s say that subsequent legislative history is okay if it is “very persuasive and/or accompanied by an amendment to the statute.”Interpretation of Earlier Statute When Enacting New – In 1991, SCOTUS accepted subsequent legislative history when a newer Congress assumed one interpretation of a statute when enacting a new one. This is evidence of the assumed interpretation.

Scalia seemed to agree with this in Franklin v. Gwinnett Co. Pub. Sch. (XXXX), at least to the issue of implying a cause of action into a federal statute.

Depositions of Lawmakers – an issue in some state cases, but generally dismissed outright, although has been cited as persuasive.Amicus Briefs of Legislature – nine legislatures filed a pro-Clean Water Act amicus brief in Rapanos, but this was not able to get Scalia off of his warpath … but the text book authors think it might have influenced Kennedy’s dissent.

Presidential Signing or Veto StatementsSigning statements usually address policy along at least one of the three dimensions:

1. discussions highlighting important features of legislation2. objections to the constitutionality of some part of a law, usually with an indication that

the administration would apply the law more narrowly than it was written3. an intention to apply a law in a particular way, based on the executive department’s

interpretation of that statute.But Pres. signing statements are unreliable evidence of the expectations of the enacting coalition.Fed. judges rarely mention presidential signing statements and do not give them much weight.

HOWEVER, if the bill is ambiguous when it is before the president, might the signing statement contribute to resolving that ambiguity? Only if the signing statement interpretation is reasonable. Veto Statements, however, are sometimes relied upon by courts because Congresses overriding of the vetoed bill is interpreted as a rejection of that signing statement.

Legislative InactionDog That Didn’t Bark Canon – when no one in the legislative discussion says that an important policy is being changed, a court should presume that no big changes are intended.

related to the canon of continuity – in the absence of clear evidence to the contrary, statutes should be construed to maintain established rules and preferences.

Three doctrines relating to congressional inaction: The Acquiescence Rule – If Congress does not amend a statute in reaction to an

agency or judicial interpretation of said statute, Congress is assumed to have acquiesced.

The Reenactment Rule – If Congress reenacts a statute w/o changes, courts presume congress endorses the existing interpretation.o SCOTUS stated this rule in Lorillard v. Pons (XXXX), saying Congress is

presumed to be aware of agency/judicial interpretations.o Reenactment R is more likely to be invoked if interpretation is authoritative –

comes from SCOTUS, etc.o How did Scalia rule in Farragher v. City of Boca Raton (1998)? What was his

response to Souter’s embrace of the reenactment rule when Congress overruled several judicial interpretations of a statute, but left the Meritor (1986)?

The Rejected Proposal Rule – if the legislature rejects specific language, the Court has been reluctant to read similar language into an enacted statute.

Rule Against Implied Repeals“In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Mortin v. Mancari (1974) (quoting George v. Pennsylvania R. Co. (1945)).Unless otherwise indicated, “a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Mortin v. Mancari (1974) (Bolivia Watch Co. v. U.S. (1961)).The Branch v. Smith (2003) court sets out these two alternatives to find an implied repeal:

When there is an irreconcilable conflict OR when the newer statute is clearly intended to be a substitute for the older law