Shared Flashcard Set


Legislation - Prof Levin
Review of Legislation Cases from Prof. Levin's Legislation Class at Washington University

Additional Law Flashcards




How is legislature better positioned than the court to implement policy?
1) Congress better at fact gathering
2) Pool of judges more homogenous than pool of legislators
3) Legislators represent the people; and the people act a a check of legislature.

4) The legislature has a wider range of tools.

5) Legislation can be enacted quickly, doesnt need to wait for a case or controversy.

6) Legislation can be revised if not working; it is easier to backtrack.
Considerations of individual legislators:
Whether bill will pass with new amendments?

How will constituency respond (will I be elected next term?)

Is bill better with or without amendments?

Intra house politics: Need to play to those in power in your party.

Partisan Politics: Need to make sure your party gets credit for good legislation.
The Idea of Deliberativeness (generally)
More People discussing over a long time - making sure laws are not passed in the heat of the moment.
The Idea of Deliberativeness (reasons for)
Slow legislative process separates legislation from the passions of individual legislators and their constituency.
The Idea of Deliberativeness: Problems w/
Preserves status quo
Article 1, Sec. 7 of the constitution:
1) Passage in both houses
2) President must sign or veto or fail to sign.
3) Failure to sign while congress in session = bill passed.
4) failure to sign while legislature not in session = pocket veto
6) Overriding Presidential Veto
Representation in legislatures - 2 Restrictions
1) Representation based on polulation, state cannot give one vote per county.

2) Equal protection requires same representation for everybody - states cannot have a house structured like the Senate
Chadda 1
Rule: Cannot have one house veto.

Reasoning: Court argues that legislative veto violates bicameralism and presentment provisions of Constitution.

Reasoning 2: Delegation of power to AG is legislative, and any attempt to undo must also be legislative.
Particularized legislative action:

1) Robertson, Plaut
2) Schiavo law
Robertson: Congress Can Change Law, but cannot direct what the court will do in a given case.

2) Shivo: Congress can grant Federal Courts jurisdiction in one specific case b/c that is not outcome determanative.
Veto: How is it a legislative power?
The veto is a legislative power because it prevents a law from coming into effect. This makes the president part of the legislative process.
Good reason to have Presidential Veto
President looks at national interest. Legislators may be driven by parochial interests.
Pocket Veto: Generally, Purposes and Drawbacks.
Generally: Normally when congress sends a bill to the president and he doesn’t sign it after 10 days (excluding Sundays) the bill becomes law. However, if the president fails to return a bill within ten days, excepting Sundays, it becomes law, “unless Congress by their Adjournment prevent its Return, in which Case, it shall not be a Law.”

Purpose: The constitution guarantees to the president the opportunity to veto, ten 10 days to think about it whether or not he will veto a bill. The pocket veto protects this this 10 day window. (Levin Notes: The 10 day period also allows the president to have some time to finagle with Congress).

Drawbacks of the pocket veto: If a bill is pocket vetoed there is no opportunity for a 2/3rds override.
Pocket Veto: Barnes v. Kline
Given the appointment of an agent, the established Congressional rules for carry-over business, and the short duration of an adjournment return is not prevented by an adjournment. It would be prevented if it would cause undue delay.
Line Item Veto State Level: Sego & Conta
Sego: Executive can't substitute his judgment for how policies should be enacted by the legislature, even though he has the power constitutionally of the line item veto (changed contingent appropriation to non contingent).

Conta: No Checks on Use of Line Item veto by governor(changed spending neutral bill into spending bill - Governers veto left law workable)
Line Item Veto: Federal Level
Clinton v. NY: Bill permitted president to cancel parts of a bill only if it (i) reduced the Federal budget deficit, (ii) didn’t impair any essential Government functions, and (iii) didn’t harm the national interest.

Rule: Unconstitutional. A5 Grants Congress express authority to enact, amend and repeal statutes.  A1S7c2 provides the Executive with the power to either approve in whole or reject in whole.

Compare: This legislation gives president discretion so UC. If legislation REQUIRES something of pres when conditions are met it is OK, even if what it requires is a matter of presidential discretion.

Scalia and Bryer: Majority emphasizing form over substance. Bad decision.
Presidential signing statements: Legislation section.
Lack legal authority but make real difference in policies administrative agencies will follow - if agencies actions are challenged it will take a long time to reach resolution.

ABA: Signing Statements should not be used to change intent of law or limit enactment of law.

Reason to allow: No allowing would force pres. between two unpalletable options: veto entire bill or enforce provisions he believes are unconstitutional.
How is signing statement different from line item veto?
LIV would make that peice unenforceable in court. Presidential signing statement still allows people to challege agency actions in court if they fail to follow the law.
Signing Statements: McCain, Obama, ABA
i. McCain said he would never issue a signing statement.
ii. Obama said there are times when signing statements are necessary. Obama said signing statements are OK to protect a presidents constitutional prerogatives.
iii. ABA said if you are a president and you see something in a law you consider unconstitutional your choices should be to veto it or enforce it. (would allow as a signal of what president believes the law means, and how he intends to enforce it)
4 uses of presidential signing statements:
Signals about how legislation will be interpreted and enforced

Signal about how the act will be applied or not applied.

Staking out constitutional Position (declining to enforce part of the act)

Signaling mechanism to agencies about how to enforce the law or not enforce the law.
Constitutionalized Enactment Procedures: State Procedural Rules
i. Requirements that a bill contain a title disclosing its subject
ii. Requirement that a bill contain only matters on a single subject
ii. That bills be referred to a committee
iv. That the vote on bill be reflected in the journal
v. That no bill be altered during its passage through either house so as to change its original purpose.
vi. That appropriations bills contain no provisions on another subject.
Review of Enactment Procedures:
1) 3 Rules at State Level
1. Enrolled Bill Doctrine

The rule conclusively presumes the validity of a bill passed by the legislature and signed by the legislative officers.

When it is operative it prevents any evidence other than the final enrolled bill itself from being produced to so constitutional violations occurring during the process of enactment.

2. Journal Entry Rule

Allows a court to consider evidence in the legislative journal to determine the validity of a statute.

Problem: journals are easily falsified. The rule would place statutes and resolutions at the mercy of Journal Clerks.

3. Extrinsic Evidence Rule

Prima facie presumption that an enrolled bill was valid, but such presumption can be overcome by clear, satisfactory, and convincing evidence establishing that constitutional requirements were not met.

Criticism: encourages inconvenience and mischief, since even the most important bills “hinge for all time upon equivocal memoranda and the frail recollection and veracity of man.”
Review of Enactment Procedures: Federal Level

Field, Iraq War Spending, Munoz-Flores, Medicare Case.
Field: Federal Courts follow enrolled bill rule.

Flores: Says field dealt with what EVIDENCE may be produced, this is a constitutional issue: the origination clause.

Medicare Case: Follows Field.
Single-subject and germaneness rules
Department of Education v. Lewis: A qualification on restriction must be directly and rationally related to the purpose for which the appropriation applies.

Dague v. Piper Aircraft: Should be interpreted liberally. In the present case (1) the legislature was aware of the contents of the act, (2) no basis to believe a trick was employed in its passage so the public would not be aware of its locations.

People v. Dunigan: The bill just needs a logical connection.
Enrolled Bill Rule and Single Subject Restrictions
In states which follow the enrolled bill rule, courts will still invalidate if in violation of single subject provision. Enrolled bill rule deals with evidence - with single subject provisions there is no extrinsic evidence required that a bill is invalid b/c invalid on its face.
Internal Parliamentary Rules: General Issue
There is a lot of non compliance with the parliamentary rules in the legislature. Is there anything the court should do to enforce the rules?
Amending Intraparlementary Rules which are based on Statute.
hen congress amends the rule through statute they usually have a section which reserves the right to amend the rule in the statute based on normal rules for passing rules in the house.

If this was not there might run afoul of the constitution: "each house may determine its own rules."
Internal Parliamentary Rules, enforceability: Members of Congress
Not enforceable for those in Congress
Reasoning: The Court is unwilling to rule when an issue would involve both construing a House rule and “imposing upon the House our interpretation of its rules.” Court relied on PQD: Separation of Powers.

Compare with Chadda: Chadda was a constitutional issue, this was a statutory issue
Intra Parlimentary Rules: Enforcement for those outside of Congress
Christoffel and Smith

Rule: People who are injured by breach of rule can get relief.

Congress can amend rules on the spot or suspend them, but if they break them those injured by them may have grounds to sue.
Supermajority Rules: Skags
House passage of a rule that requires 60% to pass tax increases. Court upholds as valid. It says injury is hypothetical, anytime a Congress want to get around the rule it can vote to suspend it with 50% then pass the bill.
Supermaority Rules: Supermajority to pass.
Constitution laid out areas where more than a simple majority would be required.

But, constitution says house can make its own rules.
Supermajority Rules: Filibuster
Clouter Requires 60 votes -> Can prevent going to vote by keeping talking unless those 60 votes happen. Bills then require bi partisan support to get past a Filibuster.

Nuclear Option: Suspending role requiring 3/5 for clouture by majority vote.

Some reason to believe different for judicial appointments.

OK requiring supermajority to get to floor, not OK for reqiring supermajority for passage.
Committees: Overview
- Help in structuring deliberation so there is not just a mass of people trying to decide things on the spot.
- Tend to be unrepresentative of the group as a whole (selection bias attracts people who have a particularly strong interest, regardless of whether this interest is shared by Congress as whole).
- Allows for specialization and the development of expertise

What is the danger? Ability to block legislation that committees are unfavorable towards.
Solution: Should have broad representation on committees and subcomittees.
Open Meeting Rules:
Trade off between getting things done and secrecy.
Discharge of petition rules: Making Signatures Public
Names Currently Made Public. Trade off between secrecy and accountability.
Committees: Getting legislation to the floor.
Can vote favorable or unfavorable in which case it goes to the floor.

OR, can do nothing, in which case the only way to get it out of committee is with a discharge petition.

OR, can
Functions or Parties Within Legislatures
Increased Efficiency: Provides a forum for discussion.

Disciplining process: Force Legislators to Vote in Certain Ways. This is good: (1) group cohereance, (2) parties think in national terms.
Open Party Caucuses
Don't work. Need forum for candid exchange of ideas.
Trustee model v. Delegate Model
Trustee Notion:  Election constitutes broad transfer of authority from the represented to the representatives. What representative owes is simply his or her best effort to shape public policy wisely.

Delegate Model: Election constitutes a specific and circumscribed transfer of authority, and the representative has a moral duty to make legislative decisions in accordance with the express interests and preferences of the represented. The duty is to promote and protect the interests of constituents as they define those interests.

Middle Ground: The above two conceptions oversimplify: Legislators are both delegates and trustees simultaneously. By the existence of leadership and initiative, legislators put issues on the public agenda, define options, and in effect write their own instructions (like trustees) which they then carry out (like delegates).
Earmark Reform: Where it is necessary
- (Levin) One of the reforms that make sense is to get rid of things that are slipped in at the last minute so there is no opportunity for vetting. You could think of this reform as allowing discussion and checks, whereas allowing things to be thrown in at the last minute does not.

The area where this is most criticized is where an earmark takes grant money away an organization where it would otherwise be distributed by peer review. (i.e. National Endowment for the Arts, NIH).
Constituent Service: Generally
Congress members reject the proposition that congressmen are only there to regulate.

One possible response is to accept at prima fascia the role that Jim Wright sets forth, but place some restrictions on what legislators can do. However, we might want to go slow on enforcement is it is susceptible to abuse by politically motivated abusers.
Possible Restrictions on Constituent Service:
i. Going to bat for particular constituents is ok, but threatening to take action (holding up or effecting legislation) is going to far.

ii. The Committee says a Congressman to threaten reprisal to find the congressmen in violation.

iii. The ABA answer (in the materials on 287 if you look at 2(b)) a member should refrain from asking the board to take action which is not in the board members power. Taking such action would be illegal. And such pressure would be onerous.

- In the Wright case the individual was trying to put pressure on the chairman to get them to do something they could do (appoint independent counsel). If he asked the chairman to exonerate the constituent then that would be something illegal, committee not following its own law.

iv. Holding Up Legislation: Another option is to say it is to hold legislation when making policy decisions, but not when holding up legislation is just done for one person.
- House believes this is what the house is there for. To "Call for reconsideration of agency response which he believes…" - The is for constituent services type inquiries.

v. Ok to represent constituents from you state, but not power players from other states (i.e. the ones that don't elect you).
Legislative Ethics Reform. Suggestions.
Publicity: Makes sense because intervention should not be so clandestine that the member and the agency cannot be held accountable should the action later be called into question.
- Thompson says there wasn't as much publicity as should be required. (levin notes, there is nothing requiring a paper trail, why would we condemn them for not having one?)

Autonomy: Author also says with respect to autonomy they should intervene when they suspect there is a substantive case fore there constituent. Autonomy requires that reps act for the right reasons. Thompson claims that if there is any sort of criminal investigation going on that its improper for the senator to get involved.
- (levin notes the senate Reprimanded only those who went after the criminal complaint. But in none of the cases did they find undue influence).

Generality: Demands need to apply to all citizens equally, rather than applying undue pressure in one particular case.

Author says there should be a distinction between agencies adjudicating matters and rule making powers.
Current Senate Rules For Ethical Conduct
Only legal standard is “avoid conduct that reflects poorly on the senate.”

As applied to Keating 5: But what the Keating senators were doing was similar to what senators do all the time when they meet with agencies.
Qualifications for office: Delegates Voting
Delegates can be given power to vote in "committeee of the whole." Cannot be given power to vote. Here was OK because revote provision.
Exclusion and Expulsion:
Exclusion: 1/2. When someone not yet seated. Cannot Exclude for reasons not listed in the constitution (Powel)

Expulsion: 2/3. Almost any reason.

In extreme cases court may review Exclusion if done for improper reasons, but done under the color of proper reasons. However, only in extreme cases. "Each house shall judge the qualifications of its own members."
Federal Term Limits: Thorton.
Rule: States cannot impose qualifications for prospective members of the U.S. Congress stricter than those specified in the Constitution. They do have the power to regulate elections though.

Thorton: Can't keep persons name off ballot just because they have been to Congress 3 times.

BUT, state can pass resign to run statutes which require stepping down from one office to run for another.
Term Limits State Level:
Term limits at state level OK. States have an interest in increasing political accountability. They were challenged on fist amendment grounds.

Compare Governer with Legislator.
Campaign Spending: Equivalent to? What to Gment have to show?
Campaign spending is the equivalent of political speech. To regulate it, government has to show compelling state interest and regulations have to be narrowly tailored.
Buckley I. Contribution and Expenditure Limits.

Current Limits?
Contribution Limits Upheld: Upheld contribution limits b/c of compelling state interest in reducing actual or appearance of quid pro quo corruption.

Expenditure Limits Struck Down: Struck down expenditure limits as restricting political speech too much by restricting expression of ideas by individuals. State interest is less compelling with expenditures made independent of a candidate b/c they do not implicate quid pro quo issues—First Amendment analysis prevails. (In the expenditure limits the court says there wouldn't be any backdoor meetings)

Currently, you can only give 2300 to a campaign, but you can spend as much money as you want constitutionally.
What interests does the state have in CAmpaign Finance Reform?
i. Limiting Quid Pro Quo Corruption. This very hard to prove, perhaps even harder to regulate. Thomas dissent in Shrink Missouri: just use existing bribery laws.

Limiting the Appearance of Corruption. Causes voter alienation and general political apathy.
Contributions to National Party?
Unlimited. And they can turn around and give it to a campaign.
Millionare Amendment: Would increase contribution limits for candidates running against wealthy

The Buckley court said it is the act of contributing that is the speech; the amount of the contribution doesn’t matter. And the only reason to limit donations over a certain amount is corruption and the appearance of corruption. If congress believes individual contributions over $2300 are prone to corruption, why allow the other side to donate three times that when running against a millionaire; that allowing corruption on the other side.
Corporations and Campaign Finance.
Overall in Austin we were talking about restriction on corporate speech of independent spending in the context of express advocacy.
- The court justifies this on the strength of the notion that corporations are able to amass large sums of money on because of special state privileges.
- Additionally, minority shareholders are placed in a position of needing to support what the board of directors wants.
(1) Soft Money, (2) Issue Add's
(1) Can limit donations to national parties when done to buy access to legislators.

(2)Prohibition of Corporate and Labor Disbursements for Electioneering Communications.

Buckley Distinguished between Express Advocacy and Issue Ads. McConnel Upheld Greater Restrictions - bans on mentioning any candidates name with a certain number of days before an election. WRL held an determined that an ad is only regulated if "the ad is susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate does it fall under the act."

OK if: it focused on a legislative issue, took a position on the issue, and asked the pubic to believe that way, and asked the public to talk to their representative.

Not OK if: mention the election, candidacy, political party, or challenger, and did not take a position on a candidates character.
Summary of Expenditure and Contribution Limits:
"We have a limitation of campaign finance regulation to corruption related rationales. Some indication corporations can be restricted more than individuals, but the question of how easily the whole regimen can be circumvented by running ads that are not campaign ads is a nagging problem. If the court is going to allow corporations to write a clever script and avoid regulation then little seems to be accomplished."
Campaign Finance, Disclosure - Buckley II, SWP,
Buckley: The Court says compelled disclosure required impinges on free speech and freedom of association. As such it must survive exacting scrutiny, requiring compelling government interests. Interests are important enough when the "free functioning of out national institutions is involved." The governmental interests served fall into this category. (1) Disclosure provides the electorate with information, (2)Disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions to publicity (3) Record keeping and reporting requirements are essential means of information gathering for the data necessary to detect violations of the act.

SWP: "The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors names will subject them to threats, harassment, or reprisals from either government officials or private parties."

Less Compelling Government Interest with Minor Parties: This is the rule because the governments interests in (1) enhancement of voters' knowledge about a candidates allegiances and interests and (2) deterrence of corruption are limited with minor parties. They are unlikely to get elected, and less likely to get elected and tend to be very ideologically based.
Problem with low threshold for disclosure?
Chilling effect. Problem when someone who is a major party candidate that supports something like gay rights in a homophobic state.
Lobbying Disclosure: Prerequisites for Coverage under Act.
1) The person must have solicited, collected, received contributions

2) One of the main purposes of such contributions, must have been to influence the passage or defeat of legislation by Congress.

3) The intended method of accomplishing this purpose must have been through direct communication with members of congress (court reads in the last requirement).

Problem with Courts Reasoning: Court says Congress wants to know who they are being lobbied by; congress already knows, the first thing a lobbyist says is "I represent GM and we just donated 20,000 you your party."
What is Disclosed?
Lobbying disclosure isn't about who is being lobbied, it is only about the budget for going to congress and presenting arguments.
Grassroots Lobbying: Reasons for regulating.
I. Arguments in favor of disclosure of grassroots lobbying:
II. Lobbyists who do grassroots lobbying are the same as those who do face to face lobbying.
III. Politicians have a right to know who is creating campaigns
IV. Citizens have a right to know who is creating the grassroots campaign
V. The other side of a issue has an interest in knowing who is supplying the information.

Unregulated Currently. Should be more accountability. Membership roles would be protected.
Criminal Liability: 3 federal Statute and Requirements for Liability Under Them.
1. Bribery:
- Generally requires a public official, (1) who obtains anything of value, (2) in return for an official act (quid pro quo), and the defendant public official or private person (3) acted with "corrupt intent."

2. Unlawful Gratuity:
- Rule: To be convicted under an illegal gratuity charge the defendant must take the money with specific knowledge of a definite official act for which the contributor intends to compensate for.

3. Extortion:
- A public official's use of official position to expect money or other benefits from private persons.
- The Federal Hobbs act which regulates extortion is different than bribery or unlawful gratuity statutes because it applies to official misconduct at the state or the federal level.

Problem with these laws? THERE is some kind of reciprocity agreement embedded with any donation.
Logrolling and Bribery
Bribery Requires Quid Pro Quo - This is done with Log Rolling as well. Log rolling is necessary to keep legislatures moving.
Tom DeLay investigation.
Facts: Majority Leader DeLay offered to personally endorse a legislators son in exchange for the legislators vote on a bill.

Holding: The Committee on Standard of Official Conduct said this was improper.

Reasoning: The Committee said it is improper for a member t offer or link support for the personal interests of another member as part of a quid pro quo to achieve a legislative goal.

Critique: OK to say "vote for this or i wont endorse YOU in the next election;" this is necessary for party discipline. Ethics Committee is drawing the line between endorsing another legislator and endorsing a legislators friend.
Legislative Ethics Reform: Appearance of Impropriety Standard
Not Good Because:

1. It is amorphous
2. The adjudicators are senators who are subject to public opinion
3. There is a natural check on corruption in this context because if there is an appearance of impropriety then the legislators can be voted out.
- The ethics committee of however has a strong interest in keeping check on this however.
Legislative Ethics Reform: Bennets Proposals and Critique
1. The 4th suggestion was "A senator should not engage in conduct which would appear to be improper to a reasonable non partisan, fully informed person."
- The Cons of This are Discussed Above

The first suggestion "A senator should not take contributions from an individual he knows or should know is attempting to procure his services to intervene in a specific matter pending before a federal agency."
-Problems w/ this rule: Const. service is common, Legislators have reason to do constituent service for both sides of the isle because if you can serve a constituent they may vote support you in an election regardless of politics.

3. Timing: Bennett's notion seems to have to do with timing. It has been seriously proposed we make a rule that says "if you have done a favor from someone you should wait a reasonable amount of time before taking a contribution.
- Stupid because then people will just wait a few months and donate then. Also free speech concerns.

4. "A senator should not take unusual or aggressive action with regard to a specific matter before a federal agency on behalf of a contributor, when he knows or has reason to know the contributor has sought to procure his services."
- Rule would mean sentaor could do more for someone who didn't contribute than someone who does. Would be better if it said "take UNUSUALLY agressive action."

5. "A senator should not conduct his fundraising efforts to engage in office practices which lead contributors to conclude that they can buy access to him."
- Not bad IF it included an OBJECTIVE REASONABLE person standards, instead of subjective standard.
Legislative Ethics Reform: Senate Rule in Wake of Keating 5
""a decision to intervene in a specific matter cannot be solely on whether the individual is a contributor." Basically codified what was already there.
Legislative Ethics Reform: Reasons for appearance standard?
Useful as a way to say "you came pretty close so watch it." Useful public admonishment w/o saying person did anything wrong.
1. Textualism
- Locke and Hill
- Sinclair
- Farber & Friky
Locke: Strict Textualist Approach (mining claim filed by midnight)

Hill: Reads 'and' to be 'or' - finds legislature was trying to make it easire to prosecute people not harder.

Sinclair: Dispite Conflicting Legislative History Judge Easterbrook said Statutory Text Controls.
Possible Ways to Interpret Text?
1) Follow the literal language period
2) Apply the plain meaning if it is clear, but if it is ambiguous then you look to intent (you look to other things to discern intent - plain meaning rule).
3) Follow the literal language unless to do so would be absurd
4) Follow the literal language unless you are just correcting a scribers error
5) Follow the literal language unless you conclude that the legislature meant to do something else

6) Follow the literal language unless you think that would really be unfair
Plain Meaning:
- Caminetti and Murphy
- Schauer
Plain Meaning Rule: If the meaning is plain on its face you are done, only if it is ambiguous do you consider other things.

Caminetti: The court refuses to go beyond the wording of the statute. A relatively conservative approach (in terms of methodology) says "we will apply a plain meaning approach unless to do so would be absurd." Real life jurists follow this.

Murphy Article
i. Criticizes plain meaning. Embraces a contrary position.
ii. “When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.'”

- Schauer Article
i. Gives a sophisticated argument for relying on literal meaning.
ii. Convenience argument—if you are willing to just decide a case on the basis of the text, its easier, more efficient.
Avoidance of Absurd Consequences
- Clinton v. City of NY
- Poisson
If the meaning is plain on its face you apply it unless it would lead to an absurd result.

- Poisson
- The literal meaning of the statute says that all laws are repealed. This could be considered an absurd result. The court doesn’t enforce it.

- Clinton v. City of New York

There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government's reading would produce an absurd and unjust result which Congress could not have intended.
Broadening the concept of intent: legislative purpose

- Intent v. Purpose
- Baker and Richardson
- Holy Trinity
- Public Citizen
- Griffin
Purpose the statute was the evil it was aimed at preventing. Intent is the intent Congress meant when it wrote the words.
Baker: Purpose of the statute was to avoid improper influence of jurors. Cigars not covered by language but act still falls within statute.

Richardson: Word has different meanings between different statutes (repair v. tolls & bicycles) b/c statutes have different purposes.

Holy Trinity: "a thing may be within the letter of the statute yet not within the statue because not within its spirit or within the purpose of its makers." The court looks to (1) the title of the act, (2) looks to common understanding of the term labor, and (3) the committee reports, and determines Congress was trying to reach a narrower class of laborers than the language of the statute read.

Public Citizen: The president doesn't utilize the ABA how the legislature meant utilize to mean in the statute.

Griffin: Court upholds huge fee. Congress didn't mean to give discretion.

Refine Holy Trinity: The Court at least Purported to look to intent; we can say there needs to be something to latch on to.
Optimistic v. Pesimistic views of legislature:

- Posner
- Hart
- Distinguishing Posners View and Hart's View
- Posner has a 2 step process for interpreting Statutes.
1. The judge should try to put himself in the shoes of the enacting legislator and figure out how they would have wanted the statute applied to the case before him (imaginative reconstruction).
2. If cant discern the above should do what was reasonable.

b. Hart and Sacks Approach
- A four Step Process
1) What was the common law before the making of the act
2) What was the mischief and defect for which the common law did not provide
3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth
4) The true reason for the remedy

- Hart and Sacks say to assume the legislature is made up of reasonable people. Posner says we should look at what the legislature would have intended at the time. So if the legislature was bigoted, you should interpret the statute in such a way.

Differences between the two views: In the way it is formulated, there is a difference between looking at what a reasonable legislature would have done (Hart) or what this legislature wanted to do (Posner).
Optimistic v. Pesimistic views of legislature.
- Dimension Financial
- Posner and Hart as applied to Dimension.
Dimension: Enforce intent of legislature who passed the bill.

- Posner / Dimension Financial: It might be that there were lobbyists involved and Congress intended to adopt a deal with wasn't necessarily overarching . The position of the majority is if you had compromise and a special interest group deal, you need to enforce that deal - here they thought Congress was trying to exclude certain banks.

- Hart / Note Case: The third circuit case assumes we have a legislature which is trying to serve the public interest.
Static v. Evolving approaches to "intent."
- When at issue
- Fyfe and Maxwell
- St. Francis and Shaare Tefila
- Other cases on statutory evolution
- Smith v. Wade
- Statute says "court should look to accepted principles of tort law."
- At issue when the term has changed in meaning. Do we assume the legislature meant to have a static meaning with the word or do we think they meant for it to change over time? This might change based on what the statute is being interpreted.

Barnett: The word "electors" should be interpreted by those that passed the statute; it does not include women even though they now have suffrage.

Note Case: when a legislature uses a word which changes over time we should read things in view of the evolved meaning of the laws. As electors encompasses more and more people as a category, we should apply that new definition to old laws.
Static Intent Can Provide Greater Rights: The Court applies section 1982 to the 'Jewish race' because Jews would have been thought of as a race then but not now.

Foreseeability: Obscene faxing not the same as obscene telephoning because legislature couldn't have foreseen faxing when the statute was passed.

Practicality: Mandatory recording and archiving of statements can't include 911 calls because of expense involved; would be too burdensome, legislature couldn't have meant that.

Smith: Prison Guard recklessly allowed prisoner to be beaten. He tried to recover punitive damages under 1983, however, Section 1983 doesn’t make reference to punitive damages. The language itself is inconclusive.
-should we be looking at what the authors of the statute had in mind, or what the statute should mean today?
- Posner (what those legislators would have had in mind): You make your best guess about what those who passed it would want (imagined reconstruction approach).
-O'Connor suggests that once you determine that common law doesn't provide any guidance then you look at the policies underlying the act.
-Brenan: Attempts to see what those legislators would have had in mind be looking at modern common law; doesn't give voice to policy like O'Connor.

-Accepted Principles: Court says accepted principles meant Congress wanted the court to apply the accepted principles presently, not at the time it was passed.
Beyond Intent:
- Dworkin
- Subsequent Events or Perceptions
- Maltz
- Weber
Dworkin — All proposition of law are interpretive of legal history. Interpretation is an ongoing process of creating new and evolving meaning from text.

Maltz— W/in constitutional limits the legislature has authority to prescribe rules of law that, until changed legislatively, bind other government actors w/in the system. Dworkin is wrong and you can't have a morally coherent set of laws, and Dworkins approach shows utter disregard for legislative supremacy.

-Weber: Literal interpretation of Civil Rights Act doesn't allow affirmative action. The majority quotes holey trinity in this case, saying the purpose is to support African Americans - the majorities approach does this.

-Dissent, Weber: Legislative history is ambiguous. Majority is choosing one set of quotes over another.

Concurrance: Should allow AA. Congress didn't foresee the situation as it is now, so should read as necessary to protect interests of employer.

Title 7 - didn't allow sexual harrasement claims when passed, later changing perceptions allowed them to be brought. This is in line with Blackmun's concurance in Weber.
Statutory Words:
- Dictionaries (MCI, NIX)
- Dictionary Act (Rowland and Reid)
Dictionaries: It is pretty clear that dictionaries can be deployed in statutory construction but they do not govern in every case where congress may have used the words differently - (1) common usage different from dictionary definition, (2) word has a different meaning in commercial context than in normal usage.

Dictionary Act: Presumption dictionary act definition applies unless context indicates otherwise.
-Does't take much to rebut (Rowland).
Linguistic Cannons:
-Maxims of word meaning
- Overview (3)
- Goldman
- Bloemer
- Words in a Series:
i. noscitur a sociis (" "it is known from its associates"): Some inferences might be drawn from related words in a series.
-In the context of "exploration, discovery, or prospecting," discovery only applies to mineral resources, not pharmaceutical breakthroughs.

ii. Eusdem Generis: ("of the same kind class or nature") (has to do with words in a series). When there is a catch all phrase in the statute you can determine the meaning from the words around it.
-Heathman: Ties to purpose of the act. Officer of law means front line officer because word is "police and sherrifs." Act targeted at not chilling enforcement.

iii. "Expressio unius est exclusio alterius": Inclusion of one thing indicates exclusion of another.
- Bloomer: By listing words they meant to exclude the things they did not list (dog food ingredients didn't need percentage of water; should question whether act to protect consumers economically, or protect dog health.
Linguistic Cannons:

- Grammatical Rules
- Overview
- Kelley
-Whole Act Rule
- Overview
- Sorenson
-The Value, if any, of the canons
- Llewelyn
-Types of Grammatical Tools:
1) Punctuation
2) Referential and Qualifying Words
3) Conjunctive v. Disjunctive Connectors
4) Mandatory v. Discretionary Language
5) Singular and Plural Nouns

Kelly: A semi colon might signify that the modifier applies only what follows the semicolon not before. They say the use of the semi-colon makes the fact that the clauses are disjunctive clearer. Although it also says punctuation tools aren't really accepted as primary tools of analysis - so it looks to the purpose of the statute as well.

-Whole Act Rule:
A legislature passes judgment upon the act as an entity not giving one portion any greater authority than another. Thus any attempt to segregate any portion or exclude any other portion from consideration is almost certain to distort the legislative intent.

Sorenson: Court reads other parts of statute to give meaning to this one.

Posner Critisizm of whole act rule: Assumes legislative omnipetance; statues are not written as internally coherent documents.

-Value of Cannons if Any
a. Arguments Against Cannons
- One argument is that there is a cannon for whatever position you want to have.
b. Arguments for Cannons
- Another argument is they are good because they provide a checklist of things to think about for a judge.
- Sometimes cannons are a useful way of articulating your position even though they aren't the root of you decision.

How much weight we give Cannons may depend on history of the bill. There can be some probative weight in cannons, but there is a problem when they are over relied on.
Legislative History:
-Committee Reports
- Introduction
- Coco and Kozinski
- Bilder and Pierce (reenactments)
- Introduction: Most scholars and judges agree committee reports should be considered as authoritative legislative history and should be given great weight. Committee reports are the most reliable piece of legislative history though because they reflect to opinion of a group of people, and in it you can see the effect of compromise, dialogue etc.

- Coco: Exclusive Jur. means exclusive of K Board not "exclusive jurisdiction" as reflected by the usual meaning. Court relies on committee report.

Kozinski: Kozinski said that the proper use of legislative history to answer certain questions Congress didn’t expect to come up by looking at legislative history to identify the underlying assumptions of the legislation. Where term is clear should not use. Legislative history doesn’t go through the art. 1(7) safeguards, congress doesn't vote on, can be manipulated, etc.

- Bilder: The language was open to two interpretations, and the legislative history was used as clarification. Language was same as previous version, but legislative history said something different and was meant to clarify the law. Problem w/ majority is words of statute didn't change and this was a reenactment.

-Pierce: Court refused to look at committee report of reenactment because words of statute had not changed. Said would look at leg history if:
- The court said it would only be controlling it if were:
1) An authoritative interpretation of what the 1980 statute meant. It was not because it is the function of the courts and not the legislature, much less a committee of one house of the legislature, to say what an enacted statute means.
2) An authoritative expression of what the 1985 statute intended. It was not because it is not an explanation of any language that the 1985 committee drafted, because on its face it accepts the 1980 meaning of the terms as subsisting, and there is no indication in the text of legislative history of the 1985 reenactment that Congress thought it was doing anything as the present issue was concerned.

The court notes reenacting a statute with the same language would be a strange way to make a change to that statute.

The court said the legislature in 1985 can't say what the 1980 statute means, it is the Courts job to interpret the law.

Distiguish Bilder and Peirce:

§ Different Times
§ Different Subject Matter (civil rights over tax)

In the Bilder case the legislature had made some changes to the bill, whereas in the Pierce case the court simply reenacted without changing the bill at all.
Statements by Sponsors and Other Individuals.
- Garcia
- Montana Wilderness I
Generally: Statements by sponsors of legislation are given much weight (although not as much as committee reports) because:
1. Sponsors are the most knowledgeable legislatures and
2. Their representations about purposes and effects of proposed legislation are relied upon by other senators.

However, sponsor has political incentives to characterize the bill in a way to get the political support he needs.

-Garcia: Statements by sponsor not enough to overcome plain meaning. Court said Committee Reports are the authoritative source, and anything else isn't sufficient.

Montana Wilderness I: Not much legislative history. Letters from chairman don't cut it because (1) not presented to congress (2) no reason to believe congress knew of them. Statements from another senator said it didn't apply. A change this big would have had more legislative history; here the history is quite sparse.
Subsequent Legislative History:
-Montana Wilderness II
Usually not relied on. Concern is that people will manipulate it to political ends.

Here OK. What was relied on in the first case was statements from a member of the subcommittee - here he has reversed and said it does apply. Subsequent legislative history here was in the process of legislation; the disciplining process was present whereas normally with post hoc legislative history there is no disciplining process.
Presidential Interpretations:
-Weight Generally,
-3 different situations.
Court does not give much weight to generally. President is not part of legislature & once president signs the bill there is no further check.

1. Constitutional Question - predident says signing with the understanding that the meaning is the one the pres thinks is constitutional.

2. Non Constitutional Question, president and Congress disagree about purpose - though not necessarily in conflict.

3. President and his administration push the bill through an write it: (1) give weight because gives insight into purpose, (2) don't give weight because we are looking to legislative intent and president isn't part of the legislature - would ignore compromises that went on in getting the bill passed.

Summary: Signing statements are a pretty unsettled matter, and rarely does the court rely on them. On one hand it looks as though the president should have a role as the person that is a very important figure in sponsoring legislation, on the other hand maybe it is a mistake to allow the president, who already has a ton of power in administering the law, to allow him to legislate as well.
Legislative Inaction
-Bob Jones
Ratification via inaction: Not Normally Given Much Weight.

Girouard: When the court has interpreted a statute one way in the past but now has a different interpretation, when congress has taken no action, the court CAN change its position on the meaning of the statute.
-Reasoning: Congressional Ratification is something you should be slow to infer. Congress might declined to act for other reasons than that the it thought the court was wrong.

Bob Jones: When congress considers an amendment that would overturn the courts interpretation, but does not pass it, that mean that they have adopted the courts interpretation. (in this case, not generally).
Interpretation in Light of Other Statutes:
- Cartledge
- West Va Univ. Hospitals
- Strauss
Issue: Whether you can gain useful information about one statute by comparing it to other statutes.

Cartledge (when court had previously read in exception): Words of a statute should be disregarded when other legislation reflects "a generalized congressional intent, based on other statutes, othewise."

Arguments for this: (1) Cong. legislating against backdrop of other statutes so must have meant to include it, (2)Cohesiveness of law: if other cases have held this exception one ought to read this in here because it makes the law cohesive.

West Va.: In other statutes congress explicitly said something, they fact they didn't say it here means that makes additional language superfluous. "Congressional purpose in embodied in what congress said, as well as what they didn’t say." (Levin)

Struss: Cases have offered the Court a choice between treating statutes as static, isolated instructions from higher authority, and regarding them as part of a "unified system of judge-made and statute law." (1) more efficient, (2) doing otherwise wounldn't lead to more precise legislation, (3) legislation passed against the backdrop of judicial interpretation, (4) successful government is a cooperative enterprise.
Borrowed Statutes
Zerbe: When a statute is adopted from another jurisdiction, it is not the interpretive decisions of all courts of that jurisdiction which are presumed to be adopted with the statute. It is only the settled interpretations of the highest court of the other jurisdiction which are presumptively intended by the lawmaker to be adopted with the statute. This is not the case if circumstances dictate it should not be the case.

Subsequent decisions by the court don't apply; can't presume legislature knew about those decisions because they had not yet happened yet.
Statutes in Conflict: Radzanower
Radzanower: The court relies on the doctrinal principle that "where a statute is narrow and precise it will not be overruled by a more general statute."

Levin Notes: Give as much weight as Maxims, should be argued IN conjunction with what the purpose was.

Order of passage does not really matter.
Conflicts between authorization and appropriation statutes (Implied Repeals).
Friends of the Earth: Repeal via appropriations committee generally disfavored, but courts allow. Here, it was a transparent process, not something put in at the last minute. Also, internal rule of procedure. Courts usually don't give much weight.
Administrative Interpretations:
- Chevron
- Cardoza-Fonesca
- Formats (Christensen, Mead)
- Brand X
- Brown & Williamson
Reasons for Deference:
1. Agencies are experts
2. Answerable to the executive (politically accountable).
- The executive is accountable to the people, this isn't true with the courts.
3. Uniformity (academic argument / non judicial).
-There are 13 different circuits and they all might decide differently.

-Chevron: (1) If the statute delegating the power it is silent or ambiguous as to the issue then the court defers to the agency. (2) If yes, then the court considers whether the agency has construed the statute in a reasonable way.

Cardoza: Even if ambiguous, an agency interpretation fails under the first step if it reaches is an interpretation that would not be found within the ambiguity. The court relies on other statutes and relies on the maxim that statutes in the same area are meant to be read together.
-The court is saying under step one, the court the interpretation reached was outside the scope of what congress delegated.

Brand X: Stare Decisis in Agency Cases: If the agency adopts a new position, and the court upheld the previous position, the new position is entitled to the same deference. If the previous position was adopted under step one though and the court said it was UNAMBIGOUS and the agency was right then it should should not be granted deference.

Brown: Stare Decisis: (1) FDA's previous interpretation disavowing the ability to regulate tobacco gives context to Congresses subsequent decisions regulating it, and Congress has since adopted other measures to regulate Tobacco.

Limitations on agency decisions:
-Big Decisison: Congress wouldn't have intended to allow the FDA to ban all tobacco products.
-Deference will be limited by subsequent congressional action.
Substantive Cannons:
-Rule of Lenity
-Avoidance of constitutional issues
-Strict v. Liberal interpretation
Intro: Substantive Cannons represent judicial values; courts presumtions about what Congress intended to do.

Rule of Lenity:
A law whose purpose is to punish must be construed strictly. Ambiguity must be resolved in favor of the defendant. This applies to all criminal and some civil laws.
-When Rule Applies: The rule of only applies after the other tools at the courts disposal have been utilized if the statute is still ambiguous.

-Mixed Situations: Thomson Center Arms Case; even in a civil context if criminal prosecution could happen based on the civil suit the rule applies.

Avoidance of Constitutional Issues: Courts will constue statutes narrowly to avoid coming close to constitutional issues based on the presumption that Congress is loath to come close to passing unconstitutional legislation.

-Catholic Bishop of Chicago: Avoids reading text to touch constitutional issue in the absence of "affirmative intention of congress clearly expressed."

Two possible rules: (1) Avoid reaching a constitutional question if it is reasonably possible to do so, or (2) You need to find an affirmative expression even where the text is totally against you (used in Gitmo Cases).

Strict v. Liberal Interpretations:
1) Derregation of the common law is to be construed strictly.
2) Remedial statutes are to be construed broadly.
-The first is largely gone, the latter is more widely used.

-Remedial: The usage of the term here is to say that when congress is changing the common law and recognize some flaw in it that is a remedial action.
Implied Causes of Action:
- Borak
- Cort test
- Cannon
- Thompson v. Thompson
Borak: The court will allow a private cause of action when the statute is silent about whether one exists when allowing such cause of action falls in line with the purpose of the statute.

Cort: 4 part test.
1) Whether the statute was enacted for the benefit of a special class of which the plaintiff is a member?
2) Legislative History (whether congress seemed to have intended it or not based on leg history)
3) A private remedy should not be implied if it would frustrate the underlying purpose of the federal statute. However, when the remedy would be helpful or necessary to the accomplishment of the statutory purpose, the court is decidedly receptive to it s implication under the statute.
4) Whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the States.

Thomson: In this case the court ditches three of the 4 factors and only talks about #2, congressional intent.

Summary of law: In the nature of things unless you are going to take the Scalia approach full dose the court is going to look at a number of factors - the case law says it is free standing and there is something a presumption that you should have a cause of action for enforcing federal rights. The court says it is looking at congressional intent but looks at a more than intent.
-Stories Definition
- Landgraf and Rivers
- Martin v. Hadix
Story: "every statute which takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective."

>Question is whether the new provision attaches new legal consequences to events completed before its enactment. If only requires forward looking compliance then OK.

g. A lot depends on how you characterize these rights.
1) Do they involve vested rights?
2) Would it involve unfair surprise?
3) Would it attach new liabilities to actions completed before the act?
-Take into account
• fair notice
• reasonable reliance
• settled expectations

Lansfraf: In the case of uncertainty the default position is there is no retroactivity. Congress must provide explicit instructions in the statute or legislative history the court is to find retroactivity.

Jury Trial Procedural Rights, so OK. Punitive damages and compensatory damages not OK.

Rivers: Statutes operate prospectively while judicial decisions operate retrospectively. Court applies interpretation of the law it would give, not the one Congress says it right while the case is pending.

Hadix: (1) can get money for work done, would frustrate expectations if that was not the case (2) cannot get money for work not already done but assigned because lawyer could drop the case if he needed to.
-Attorney is not unfairly surprised if rate is capped and they continue to work.
Effective Dates
Grants Estate:
A bill goes into effect when signed. If there is no information about when the bill was signed then the court applies the "day rule" that the bill applies starting at midnight of the day it was signed, UNLESS doing so would be unjust (interfere with property rights or criminal liability). In such case the court applies the rule as if the bill was signed the following day.
• Guy committed burglary after stiffer law went into effect, but before it was publicized.
• Court says it still applies because
• (1) the terms of the law had been widely publicized in advance and
• (2) Casson had not shown that if he had tried between 3:05 and 10:00 to find out the status of the bill,
he would have been unsuccessful.

b Texaco v. Short
• Statute required that you file a claim within two years of enactment to keep your unused mineral rights.
People who lost their rights claimed inadequate notice, and the Court disagreed.
• Persons owning property within the state are charged with knowledge of relevant statutory provisions
affecting the control or disposition of such property.

2 year grace period was enough.

Severability and other judicial remedies for unconstitutional legislation:
- Chada
- Westcott
Presumptively assume severable unless there is evidence congress would not have passed it without that clause. If there is evidence Congress would have passed it without that clause then strike down all of it.

If remaining law would not be operable strike down all of it.

Presense of severability clause is no outcome determanitive, may support decision, but often added to long bill without much though.

Wescott: Extension is proper when the equities mandate it rather then striking down statute entirely.
Stare Decisis:
Patterson: (1) The primary reason to overturn stare decisis is that there has been an intervening development of the law. (2) Another reason to overrule is that a precedent may be a positive detriment to coherence and consistency in the law, either because of inherent confusion from an unworkable decision or because the decision poses a direct obstacle to the realization of important objectives embodied in other laws.
• Sometimes precedent becomes more vulnerable as it becomes outdated and after being “tested by
experience, has been found to be inconsistent with the sense of justice or with the social welfare.”

Reasons for Stare Decisis: (1) tacit acceptance of Congress (poor arguement: cant get much from legislative inaction), (2) reliance and continuity.
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