Legislation

Legislative Process Models

Pluralist & interest-group theories

Pluralism

Public-choice theory

Role of judge

Proceduralist theories

Verogtates

Civic republicanism

Role of judge

Institutionalist theories

New institutionalism/positive political theory

Role of judge

Role of Judicial Review

(Procedural) Due Process of Lawmaking

Competent-institution requirement

Legislative drafting

Legislative consideration of constitutionality

Direct Democracy

Direct democracy generally

Three processes

Benefits

Problems

Single-subject rule

Direct democracy and equal protection

Significance of direct democracy

Class affected

Degree of process burden

Direct democracy and (procedural) due process

Adjudicative” actions warrant due process of lawmaking (no direct democracy).

Legislative” actions warrant less due process of lawmaking (yes direct democracy)

Legisprudence

Legisprudential Theories

Pre-Legal Process

CL formalism

Civil-law formalism

Realism

Legal Process

Hart and Sachs purposivist

Calabresi proposal

Post-Legal Process

Law and Economics

Critical legal scholarship

New legal process: pragmatism

Stare Decisis

Stare Decisis generally

Legisprudential theory – vertical vs. horizontal consistency

Prospectivity & Retroactivity

Levels of prospectivity and retroactivity

Full Retroactivity

Selective retroactivity/prospectivity

Full Prospectivity

Presumptions against retroactivity

Statutory Interpretation: Touchstones

Textualism

Soft plain meaning rule

Hard plain meaning rule

Economic overtones (ex ante vs. ex post)

State of the law today

Intentionalism

Specific intent

Imaginative Reconstruction of Legislative Intent (General Intent)

Purposivism (Legal Process Theory)

Purposivism generally

Correcting legislative mistakes

Updating” statutes

Judicial “surgery”

Concerns about legal process  led to soft textualism

Best Answer

Statutory Interpretation: Intrinsic Tools

Textual Cannons

Text at issue.

Textual clarity

Word meaning and association

Ordinary (and technical) meaning of words

Noscitur a Sociis

Ejusdem Generis

Expressio unius (or inclusio) est exclusio alterius

Grammar canons

Punctuation Rules

Last antecedent rule

And” vs. “or” rule

May” vs. “shall” rule

Singular and plural numbers, male and female pronouns

Avoid absurd results

Fixing errors

Whole Act Rule

Statute titles

Preambles and purpose clauses

Provisos

Avoid surplusage

of Consistent Usage (and of meaningful variation)

Substantive Canons

When to use substantive canons

Rule of lenity

Ashwander Doctrine

Federalism – Clear Statement Rule

Llewellyn’s attack on the canons

Statutory Interpretation: Extrinsic Tools

Stare Decisis

Common Law

Historical Context

Legislative History

Types (in order of preference)

Conference & Committee Reports

Drafter/sponsor statements

Other floor Statements

Hearing Testimony

Evolution of the Statutory Text

Legislative Inaction

Inaction = acquiescence

Ratification by re-enactment

Rejection (or neglect) of proposals

Silver Blaze (Absence of Legislative History)

Silver Blaze (Absence of Legislative History)

Subsequent Legislative History

Presidential signing stmts

Post-enactment Congressional discussion

Interpretation in Light of Other Statutes

In Pari Materia

Modeled or borrowed statute

Presumption against implied repeals

Agency Deference – Chevron Doctrine

Other Important Values

Legislative Process Models

I.Pluralist & interest-group theories.

  1. Pluralism.
  2. Theory.
  3. Citizens organize into groups for political action.
  4. Interest group politics results in pluralism – spreading of political power among many actors.
  5. Politics is the process by which conflicting interest-group desires are resolved.
  6. Public pol’y = the equilibrium reached through interest group conflict.
  7. Role of lege
  8. Enact agreements worked out among the competing interest groups.
  9. Normative.
  10. Pluralism is a good thing.
  11. Competition between groups helps ensure against the rise of any one faction (Madison).
  12. Public good is the result.
  13. Critique.
  14. Smaller, more cohesive and determined interest groups may be have disequal power.
  15. Free rider problem –large, diffuse interests are weaker, because people will free ride and not contribute to efforts promoting the interest.
  16. Not all views are represented.
  17. Public-choice theory.
  18. Theory.
  19. Politicians are rational economic actors operating in a competitive electoral marker.
  20. Demand = interest groups legislation.
  21. Supply = desire for reelection.
  22. Legislators respond to demand in way most advantages to reelection.

1)Passing bill.

2)Avoiding decision through delegation to agency or exec.

3)Not pass bill.

  1. Role of lege
  2. Maximize electability.
  3. Descriptive.
  4. Relatively more descriptive than pluralism.
  5. Define what legislators do and why – not saying that’s how it should be.
  6. BUT is normative insofar as it criticizes other models for not considering the hows and whys of legislators’ actions.
  7. Critique.
  8. Under public choice theory, it’s not economically rational to vote. Since people vote there must be non-economic values at stake here.
  9. Oversimplification of the political process.
  10. Money and organization do not always translate into clout.
  11. Legislators are interested in more than simply being reelected.
  12. Disregards institutional changes that affect behavior.
  13. Doesn’t consider the affect of the President on legislative behavior.
  14. Assumes that preferences are independent of and prior to political activity: participating in decision-making can affect the way a person thinks and feels about a particular issue.
  1. Role of judge.
  2. Passive–respect the deal made b/w interest groups and passed into law.
  3. Activist –deals aren’t public good, just rent-seeking BS, so interpret as narrowly or simply refuse to enforce them.

II.Proceduralist theories.

  1. Concern for tyranny of factions (Madison).
  2. Direct democracy would produce unwise legislation – problem of majority and minority factions.
  3. Solution –procedures (bicameralism, representative democracy, checks and balances etc.) present vetogates,make it difficult to make law.
  4. Vetogates.
  5. How a bill becomes a law – opportunities to derailbill.
  6. House.
  7. Drafting or bill.

1)Lege staff, gov’t agency, interest group, academic.

  1. Introduction of bill.
  2. Referral to standing committee.
  3. Committee action.

1)Referred to subcommittee.

2)Hearings on major bills.

3)Committee resolution.

a)Take no action.

b)Defeat.

c)Accept.

d)Amend & report back.

  1. Calendar placement.

1)Union calendar– most bills.

2)Housecalendar – some rules and const. amendments.

3)Private calendar – private bills.

4)Dischargecalendar –motions to discharge bills pending in committee.

  1. Rules committee.

1)Power of majority.

2)Refusal to determine rule–kills bill.

3)Open rule –yes floor amendments.

4)Closed rule –no floor amendments.

5)When bill considered.

6)How much time for debate.

  1. Floor action

1)Passage or defeat, possibly with amendment.

  1. Senate.
  2. Drafting or bill.

1)Lege staff, gov’t agency, interest group, academic.

  1. Introduction of bill.
  2. Referral to standing committee.
  3. Committee action.

1)Referred to subcommittee.

2)Hearings on major bills.

3)Committee resolution.

a)Take no action.

b)Defeat.

c)Accept.

d)Amend & report back.

  1. Calendar placement.

1)General orders calendar – most bills.

2)Executive calendar –treaties & exec. nominations.

  1. No rules committee, but make rules via unanimous consent agreements.
  2. Floor action

1)Passage or defeat, possibly with amendment.

2)Filibuster.

  1. Conference committee.
  2. Bill signed by Speaker of the House VP/President of the Senate.
  3. Presentment to president.
  4. Sign in to law.
  5. Veto.
  6. Pocket veto.
  7. 2/3 veto override, if necessary.
  1. Civic republicanism.
  2. Theory.
  3. Legislative politics should foster a deliberative process, slow down and improve legislation through deliberation.
  4. Public good results – not just a bare deal b/w interest groups, but a reasoned decision by intelligent legislators.
  5. Role of judge.
  6. Passive – assume lege did the best, came up with public good, serves public interest.
  7. Activist.
  8. Find out whether lege actually did its deliberative job.
  9. If not, fix the lege’s mistake, interpret in way to make lege deliberate, etc.

1)Lege punt not allowed.

III.Institutionalist theories.

  1. New institutionalism/positive political theory.
  2. Theory.
  3. Political outcomes depend on multiple independentactors–members of House, Senate, President, and agencies.
  4. Desires can conflict or accord.
  5. Public-choice deals made in the House are not made just between legislators of concern for interest groups & reelection – made with eye to the Senate, whether president will sign it, and how it will be affected/implementedby regulation.
  6. Outcomes explained as “balance” and “equilibrium.”
  7. Role of judge.
  8. Consider how the whole game works.
  9. Passive –respect the deal worked out not only b/w legislators & interest groups, but also other actors.
  10. Activist –find out whether deal is a good one, or whether unduly influenced the larger game.

IV.Lege punts to courts.

  1. When facing controversy, lege will not define a term, and punt to Court.
  2. Griggs.
  3. Unlawful to discriminate in employment on basis of race. But lege didn’t define meaning of discriminate—intentional or disparate impact?

V.Case examples.

  1. Weber.
  2. Facts: The agreement between USWA and plant contained an affirmative action plan, designed to eliminate racial imbalances in plant’s almost exclusively white craft-work forces. Black craft-hiring goals were set for each plant equal to the % of Blacks in the respective local labor forces. Selection of craft workers was made on basis of seniority with proviso that at least 50% of the new trainees were to be Black until the % of Black craft-workers equaled the Blacks in the labor force. White Weber sued claiming discrimination in violation of Title VII §§ 703(a) and (d), which make it unlawful to discriminate based on race.
  3. Brennan (best answer):
  4. Textualist.

1)703(a) and (d) plainly prohibit discriminating.

2)But in the context of affirmative action, reliance on a literal construction is misplaced.

3)Could have been clearer if wanted to prohibit racial preferences.

a)§ 703(j): nothing “shall be interpreted to require any employer to grant preferential treatment to any group because of” race. Just b/c not required doesn’t mean impermissible.

b)Could have said “nothing shall be interpreted to permit preferential treatment.”

  1. Intent

1)A thing may be within the letter of the statute and yet not within the statute b/c not within the intention of its makers.

2)No specific intent re: whites – Cong. didn’t consider white discrimination.

3)Specific intern re: blacks – intent was to change the plight of the Negro in our economy

  1. Purpose

1)A thing may be within the letter of the statute and yet not within the statute b/c not within its spirit.

2)Purpose was to achieve equality in work force, not prevent all discrimination. Then, looking at Congressional intent, he shows that the. He jumps right into legislative history to show this.

  1. Best answer

1)From all of this, the best answer is that affirmative action should be permitted.

  1. Rehnquist (textualist):
  2. First, says that Kaiser’s racial admission quota is flatly prohibited by the plain language of Title VII (703(a) and (d)).
  3. But, even if we have to play the Congressional intent game, the majority is wrong – in this case, the history is clear that Cong. wanted to prevent all discrim.
  4. Public choice.
  5. Don’t consider purpose.

1)Congress as a whole has no purpose.

2)It is just made up of selfish individual legislators.

  1. Just focus on the deal made and preserve it.
  1. Civic republicans.
  2. Look at dialogue of legislators.
  3. If didn’t consider whether to allow discrimination against whites, then force Cong. hand or decide for them.

VI.Johnson.

  1. Facts: Transportation Agency promulgated an affirmative action plan to remedy historic patterns of discrimination against women and minorities in some job categories. The agency was authorized to consider as one factor the sex of the applicant. Pursuant to the plan, the agency promoted Diane Joyce to the position of road dispatcher in the agency’s Roads division. One of the applicants passed over was Paul Johnson, who had a higher score based on his paper credentials and oral interview. He sued claiming sex discrimination.
  2. Stare decisis & Cong. acquiescence mean Weber was right –aff. action OK.
  3. Unbundling issue:
  4. Dialogue theory would require Cong. unbundle the act voted on, to vote particularly on whether aff. action is OK.
  5. Public-choice.
  6. Bad – don’t unbundle the deal!
  7. Civil-republican.
  8. Good – forces serious deliberation on the issue.

Role of Judicial Review

(Procedural) Due Process of Lawmaking

I.Due process of lawmaking generally.

  1. Courts should adopt methods of adjudication/statutory review that promote rational lawmaking by legislative bodies.
  2. Civic republican overtones.

II.Competent-institution requirement.

  1. Legislature/executive must make decisions when uniquely suited to make such decisions.
  2. See Direct Democracy > Direct democracy and (procedural) due processbelow.
  3. Hampton v. Mow Sun Wong.
  4. Facts: Five permanent resident aliens denied civil-service employment by civil service commission. No legislative/executivestatement that aliens can’t be employed by U.S.
  5. Court: Violates due process of lawmaking.
  6. Legislature/exec. must make determination that aliens shouldn’t be employed by U.S.
  7. Civil Service Comm’n has no policy basis rooted in its objectives for requiring that only citizens can be employed.
  8. Aftermath.
  9. President Ford E.O. requiring citizenship.
  10. Has never been changed by lege or pres.
  11. Weak requirement.
  12. Steven’s first opinion on the bench.
  13. Majority might have gone along with him just because giving deference to freshman.
  14. Has never been applied to completely decide another case.

III.Legislative drafting.

  1. How to make sure that due process of lawmaking served?
  2. Clear statement rule
  3. Require legislature to have clear statement of purpose, in text or legehist.
  4. Ensure that constitutional decision was actually considered by the competent institution.
  5. Textualist analysis – civic republicanism.
  6. By placing much emphasis on text (no lege hist.), influences legislative behavior to actually consider issues, instead of punt to courts.
  7. Members will know what they are voting on.
  8. Citizens will understand the rules that are prescribed.
  9. Structure of bill.
  10. Long title & enacting clause.
  11. Introductory clauses.
  12. Describe thrust of stat.
  13. Table of contents.
  14. Findings.
  15. Statement of purpose.
  16. Substantive provisions.
  17. Definitions.
  18. Provisions setting forth rights and duties, defenses and exceptions.
  19. Admin./procedural provisions.
  20. Sanctions and enforcement provisions.
  21. Misc. provisions – transitional rules, construction by courts, etc.
  22. Effective date.
  23. Provisions amending/repealing existing law.
  24. Strike and insertion – short technical changes.
  25. Full restatement – restate section or subsection with changesas a clean version.
  26. Repeal and replacement – entire acts or more than 1 section
  27. Ending clauses.
  28. Savings/grandfather clause.
  29. Severability/inseverability clause.
  30. Drafting a statute – crash course.
  31. Three steps.
  32. Determine what stat. is designed to do.

1)Consider objective of statute.

2)Consider political realities - what can be practically accomplished.

  1. Determine structure of proposed stat.

1)What needs to be done to implement idea.

2)How to fit proposal within existing legal code.

  1. Draft bill.

1)Language and organization not more complicated than necessary.

2)Serve object of legislation without creating unnecessary problems.

3)Internally coherent.

4)Consistent with usages in existing statutes.

  1. Recurring problems.
  2. Severability or non-severability.
  3. Effective date/retroactivity/savings clause – application to pending cases; application to conduct before enactment; other transition rules.

1)Degrees and kinds of retroactivity (e.g., application to which pending cases, pending at what stage)

2)Different kinds of provisions (e.g., procedural, remedial, regulation of primary conduct, both direct and indirect).

  1. clarify repeals
  2. Federal pre-emption of state law?
  3. Intended applicability to state and local government units?
  4. Authority invoked (enforcing the 14th amendment??)
  5. Applicability to federal government instrumentalities and units in various branches of federal govt.
  6. Waiver of federal sovereign immunity?
  7. Creation of a private right of action?
  8. Applicable statute of limitations
  9. Right to jury trial?
  10. Right to attorney's fees?
  11. Delegation of rulemaking authority?
  12. Some indication of interpretive philosophy.
  13. Judicial jurisdiction over disputes
  14. Definitions.

1)Attend to any “single subject rule” in force

2)Attend to any applicable rules of clear statement; substantive canons.

  1. Dickerson, The Diseases of legislative language.
  2. Ambiguity – either/or meaning.
  3. Semantic ambiguity – word with two meanings.
  4. Contextual ambiguity.
  5. Vagueness – multiple meanings.
  6. Overprovision–leads to expression unius problems.
  7. See Textual Canons below.
  8. Elegant variation – use one word for the same thing only; this isn’t creative writing.

IV.Legislative consideration of constitutionality.

  1. Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation.
  2. Assumption 1: legislators are obligated to determine constitutionality.
  3. Pro-assumption.

1)Some const. provisions directed to legislators (e.g., No ex post facto law shall be passed).

2)Framers thought legislators should consider constitutionality.

3)Congressmen bound to support the Const.

4)Judicial review emphatically the province of the courts, but not only the province of the courts.

5)Courts presume that legislators consider constitutionality; presumption that laws are in fact constitutional.

  1. Con-assumption.

1)Legislator incompetent to know what court would do.

a)BUT lawyer-filled committees are competent.

  1. Assumption 2: legislators should be bound by constitutionality determination.
  2. Pro-assumption.

1)Gov’t should work relativelyharmoniously, respect other branches.

  1. Con-assumption.

1)Legislators role is to make policy he and his constituents want, not adhere to what courts might say.

2)If did that, then would never have chance to overturn bad precedent.

  1. Legislative response when they think court is wrong.
  2. Don’t go around disrespecting institutional independence of court.
  3. But when necessary, make court decide again – it might change its mind.

Direct Democracy

I.Direct democracy generally.

  1. Three processes
  2. Initiative.
  3. Citizen vote to make new law.
  4. Direct initiative – automatically on ballot after vote.
  5. Indirect initiative – lege has chance to act first.
  6. Referendum.
  7. Citizen approve or reject law already proposed or enacted.
  8. Popular referendum – electorate votes to have law subject to approval/rejection by electorate.
  9. Submitted referendum –legislature places before electorate a law subject to approval/rejection by electorate.
  10. Recall.
  11. Citizen removal of leader form office.
  12. St. Paul Citizens.
  13. Facts: Citizens had all three options, used initiative process to delete two pieces from existing law.
  14. Issue: Can initiative be used like a referendum?
  15. Court: Yes, power to make law (initiative) includes power to unmake law (usu. referendum).
  16. Dissent: No, referendum process (45-day wait period) meaningless if can unmake law via initiative.
  17. Benefits.
  18. Attack legislative arrogance, incompetence, corruption and selfishness – break up special interest dominance.
  19. BUT pluralists want that.
  20. Problems.
  21. Tension with the republican form of government intended by the framers.
  22. Madison didn’t want such a direct form b/c he feared tyranny by the majority.
  23. Guarantee Clause (nonjusticiable)–requires the United States to guarantee a republican form of gov’t in each state.
  24. If we believe that lawmakers should assess the constitutionality of laws (as we expect, to some degree, with legislators), then there is a problem if we allow voters, untrained in the law, to make laws.
  25. Practical problems.
  26. Burdensome procedures and importance of money = more available to organized, wealthier interests.
  27. Voter confusion or apathy
  28. Distortion of the law-making agenda (making legislature bow to their interests even though they might not be a majority).
  29. Bigotry – fear for minorityprotection.
  30. Direct democracy doesn’t promote deliberation – no amendment.
  31. Money talks even louder in direct democracy b/c groups that can push for it have lots of resources.
  32. Single-subject rule.
  33. Direct democratic device can only consider one subject at a time.
  34. Pol’y.
  35. Concern for logrolling – getting one group to vote for one change so you can get the other change.
  36. St. Paul Citizens.
  37. Facts: Citizens used initiative process to alter discrimination law, two different pieces of text, one about sex, one about religion.
  38. Court: satisfies single-subject rule.

1)Both related to single subject of discrimination law.