Legislation and Regulation Class Outline

8/16/2010 This class examines the material through the legislative (public and open) process

where my other classes examine the material through the judicial (private and closed) process.

This class invokes more separation of powers principals than others. Judges’ bias heavily influences how they interpret statutes.

Patient Protection and Affordable Care A H.R. 3590 is over two thousand pages in length. Many congressmen who

supported this bill actually said they had not read it. The House sent this to the Senate. The Senate amended it and sent it back to the House. Some

House reps disapproved of the amendment. The Senate lost a Democrat over the winter break. The Senate worried that when the House sent it back, it wouldn’t get enough votes. They convinced the House to pass it as is. In return, they promised to pass a reconciliation bill to resolve the dispute in the House’s favor so that at least the bill would pass.

Lobbyists do perform valuable functions and are more than just seedy. They educate legislators and perform research, reading, and writing tasks.

P 1-1, we skipped, Prof mentioned that you have to weigh risks and strategies and there is no right answer

We discussed textualism, intentionalism, and purposivism

We discussed sources for interpretation including intrinsic (statute), extrinsic (legislative record) and policy (common law, constitution, why the statute was created, the problems meant to be addressed)

Professor Helge mentioned the rule of lenity ( a substantive canon of construction) which says that in criminal law you must resolve ambiguity in favor of the defendant – this serves to promote narrow constructions allowing average people to understand what the law requires of them

We then began discussing Beiswenger v. Psychiatric Sec. Review Bd. Facts: man convicted of guilty but insane and institutionalized, board would not

offer parole because they define addictions and sexual disorders he suffered from as “mental disease or defect” although his schizophrenia went away

Issues discussed: What does “mental disease or defect” mean? That statute does not say what it is, but does say what it is not. It is not antisocial conduct or personality disorders

We stopped and Helge said we would finish the discussion on the applicability of the statute to the issue next period

8/23/2010Beiswenger v. Psychiatric Sec. Review Bd. Continued

Key here is statutory construction, that is what to take away from this case In defining “mental disease or defect” the judge looked first at common parlance,

then at Webster’s, then pointed out that the “personality disorder” exception in the statute could conflict with Websters, then declared it ambiguous, then turned to legislative history,

Judge’s definition of ambiguous – at least two are not “wholly implausible” Order of authority: Constitution → Statute → Administrative Rules The issue is whether or not the statute conflicts with the Admin Rules, the PSRB

being the Admin and the Judge in the board review doesn’t look good

Page 41, Note 4. Judges reject affidavits of meaning from legislators in all cases whether it’s the governor who signed it, a majority of people that voted on it, or the principal author of it. I think if they accepted it, it would violate separation of powers and allow improper legislation.

On page 41, problem 2-1 The class split and argued both ways on the Maria Fogg rent control case This was based on a case called Braschi v. Stahl 543 N E 2d 49 (N & 1989) which

Helge wrote on the board. The “judges” stated they wanted to support homosexual civil unions and gave that

as the reason for their ruling for Maria Fogg.

We discussed the notes on page 51 We will, in this class, discuss how the “plain meaning cannon” affects textualism See the Cannons of Statutory Interpretation Document I made for additional info

on this Neither Intentionalism nor Purposivism need to find ambiguity before looking to

extrinsic sources Intentionalists look for “truthfulness” while purposivists look for “overarching

policies or goals” Alaska officially adopted the Sliding Scale approach, this is on p. 52

8/31/2010

State v. Courchesne, page 54 Plain meaning weighed toward the defendant, esp. w/rule of lenity Legislative intent allegedly favored the plaintiff

o The judicial opinion failed to point out what sources or which part Court adopted a purposivist approach In Texas, judges are elected, but in federal courts and many states the executive

branch appoints them

Kalal v. Circuit Court of Dane County, page 60 DA has authority from the executive branch to use resources as he sees fit Defense makes a policy argument against separation of powers (weak) The court (textualist) declared the word “refuse” unambiguous and stopped there

The concurrence (intentionalist/purposivist) inveighed against the aphorism of “you must first declare the text ambiguous”

We discussed p. 2-2 Using different approaches as springboards for analysis could lead to different

results. Interestingly, under textualism, the analysis stops abruptly without reaching the discussion of “willfulness.” This discussion is critically important.

I might have to change over to intentionalism. Textual interpretations can miss huge discussions like this one. Textualism, while sounding good, is an ideal we should strive for, but since we live in the real world we can’t always be so idealistic. We have to recognize the gaps and fill them in, hard as it may be.

9/13/2010Helge’s outline for the classRoadmap for the semester in order to help with outlining

Introo Legislative Processo Statutory Interpretation: Determining the meaning of Text

Approaches to Statutory Interpretation Plain Meaning Ambiguity Absurdity Punctuation and Grammar

We will spend two weeks on Chapter 6, dealing with the textual cannonsStatutory Interpretation: Additional Sources7, 8, 9, 10, 13Statutory Interpretation: Legal HierarchyCh. 14, 15, 16Intro to Regulatory LawRole of administrative agencies and other stuff

Every approach starts with the text itselfUnder the plain meaning approach, you stop with the text if you do find a plain meaning

The “Use Case Trilogy Meaning of words and their connotations change over time

o A once plain meaning may not be so plain one decade later Supreme Court justices can differ on the meaning of the word “use”

Patrie v. Area Coop School District Sometimes the definition of the word or phrase derives from its audience In this case the court decided the statute, written for the school district, should

take on the meaning that a school administrator would glean The court also oxymoronically adopted the dictionary meaning as the plain

meaning, then added the word “intentional” to the front of it

On an exam question discuss the following: audience, dictionaries, parlance, plain meaning, cannons, policy concerns, absurdity (The Golden Rule) (expand on this list)

9/20/2010Two Theories to Ambiguity(1) Strict rule: Ambiguity only exists when the two possible interpretations equal each other

This is a more objective rule It makes sense to a true textualist doing everything he can to avoid looking

beyond the text This emphasizes syntax

(2) Looser rule: Ambiguity exists when two plausible explanations exist. This makes it fairly easy to find ambiguity and lets you still call yourself textualist This emphasizes semiotics

Two Theories to Absurdity (aka The Golden Rule Exception)(1) Strict rule: Absurdity exists when the interpretation shocks the conscience or shocks common sense.

This basically means correction of a legislative error is absolutely necessary. It turns the judge into an intentionalist, but a narrow one.

(2) Looser rule: Absurdity exists when the interpretation leads to an illogical result. Logic, however, is based on the assumed reasoning of the legislature, turning a

textualist into at least an intentionalist if not a purposivist

9/28/2010In Pari Materia aka The Whole Act Rule: Words are not viewed in isolation, but rather in (1) context with the statute and (2) context with related statutes.

Defining “related statutes” is difficult and leads to heated arguments.Issues with “related statutes”:

Consensual v. non-consensual activities described Prosecutorial discretion – (they should be allowed to pick and choose the statutes

they want to enforce) Plain meaning is unambiguous and should therefore be read in isolation Differences of scope in statutes make them related or unrelated

The Rule Against SurplusageWe read words as each having meaning and, if possible, do not render any words meaningless or extraneous.

This cannon often justifies narrow interpretations. Courts invoke this cannon to take a phrase to mean the exclusion of other phrases, reasoning that if they didn’t give it this extra meaning then it would be surplusage since another term encompassed it.

Helge pointed out that attorneys, judges, and legislatures do not write in a way that lends itself to this cannon. We tend to say redundant things all the time like give, devise, and bequeath.

10/4/2010

List of cannonsIn Pari Materia, Rule Against Surplusage, Noscitur a Sociis, Ejusdem Generis, Expressio Unius Est Exclussio Alterius, Identical Words Presumption, ProvisosThree Cannons for Lists:Noscitur a Sociis

List of terms without a catchall at the end Often conflicts with Rule Against Surplusage Common traits in the terms define the terms Watch out for multiple possible common traits

o Argue for and against which common traits are bestEjusdem Generis

List of terms with a catchall at the end Catchall limited by the common traits Argue for and against scope

o A textualist might ignore scope and adopt whatever scope the plain meaning might apply, even if it doesn’t add up

Expressio Unius Est Exclussio Alterius Including terms means the exclusion of other terms Not a universally applicable rule Argue for and against its applicability based on context

o Saying buy eggs, milk, and bread does not mean and not ice creamo On the other hand, listing your kid’s names is normally exhaustive

Look for a series, sharp contrast, and contexto Words like “may” imply examples rather than exhaustive lists

Textualist Looks at the least amount of supporting information possible

Intentionalist Less broad that purposivist

Purposivist More broad than intentionalist

Identical Words Presumption:Blind faith in this canon leads to problems, especially with related statutes.Like all cannons, should only apply when it makes sense to do so.

Provisos:Provisos = narrow interpretationProvisos should have some form of the word “provided”The word “notwithstanding” might be a savings clauseSavings clauses = broad interpretation

Savings clauses are intended to keep statutes applicable to the extent that they do not interfere with another statute. Provisos create exceptions to general rules.

10/11/2010Terms to know: Purview (the enacted parts), enacting clause, long title, short title, popular title

General rule: Courts treat long and short titles the same even though one comes before the enacting clause and one after.General rule: Must wait until statute is ambiguous before resorting to either title.People can obey the letter of the law and not the spirit. This works in reverse too. Things can be in the letter of the law yet not the spirit.General rule: Preambles are treated the same at titles.Continuum of when jurists look at extrinsic materials:must find ambiguity after applying canons, must find ambiguity and canons unnecessary, to continue the meaning of clear text, to defeat the meaning of clear textSinclair: Will look when its really persuasive.Idalski: Will look when plausible reason to look.

10/18/2010The idea that you can reconcile the Supreme Court’s approaches to extrinsic sources is unpersuasive to HelgeThe idea is that the extrinsic sources provide a window to see the textual meaning, but the window is not the meaning or the text, but rather the perspective with which to view the text.The more persuasive idea is that the court’s members have changed and the court’s approach has changed with its membership along this timeline:1982 – Holy Trinity, the court starts using extrinsic sources with no discernable pattern1940 – the pattern is established and the court is very purposivist1960s – the court undramatically becomes intentionalist1989 – Justice Scalia and the textualists took us into the modern era of interpretationReasons not to go extrinsic:

1. Clear text is not malleable2. Nonmajoritarian interpretations3. Risk of judicial activism4. Presentment and enactment not complied with5. Separation of powers6. Americans should be able to understand the law as written; Counter: Federal

legislative history is not readily available online to all citizensOriginalism – many textualists are also originalists, meaning that seasonably pertinent extrinsic sources have great value as contextual cues of meaningHoly Trinity – something can be in the letter of the law, but not the spirit of the lawStatutory Interpretation:As opposed to common law interpretation it means a super-strong level of stare decisis

Courts sometimes keep following bad law, like in Flood v. Kuhn, rather than change their statutory interpretation

Partly because the legislature may have hesitated to enact in reliance on that particular interpretation

Four reasons not to read into legislative silence:(1) Ignorance: Congress may or may not know of the court’s decisions(2) Ambiguity: in the meaning of what the legislature is doing(3) Inertia: Its’ easier to enact a bill than to amend one(4) Irrelevance: Under originalsim, the current legislature doesn’t matter

Vague text: Sometimes the legislature might intend to give judicial discretion by use of vague words or by inability to make a decision on a major issue.Purpose:Purposivism is the oldest method. It runs into problems due to unclear purpose and findings clauses, purposes that are not prevailing purposes, and multiple purposes that must be ranked and sorted in order to fashion a holding.The Mischief Rule:(1) identify prior law(2) identify problem with prior law(3) identify legislative remedy selected(4) Construe statute in a way that uses the selected remedy against the selected mischiefUses of Purpose:

1. Support the plain meaning2. Question the plain meaning3. Totally refute the plain meaning (least popular use – Holy Trinity)

The Squirrel Case:Sometimes statutes reach the right result in a vast majority of cases, but in those rare exceptions to the rule, you still have to have justice. Reasons: Fairness, virtue, kindness, humanitarianism, etc…

10/25/2010Conflicting Statutes:

1. Attempt to reconcile by any means possible (Primary rule)a. Express repeal v. Implied repeal (disfavored)b. The Clear Statement rule (must make a clear statement if important

principle implicated. Important principals:i. Usually Constitutional issues like federalism

ii. We also looked at a case dealing with sovereign immunity, a deeply entrenched common law concept

2. Specific trumps general (Secondary rule)3. Later trumps earlier (Tertiary rule)

Historically, the vacillating feudal legislatures gained a reputation for inconsistency and the common law earned great deference. People viewed the common law as arising over time out of unwavering fundamental principles of justice.Derogation of common law v. Remedial to the common law:

Some argue that the classification “in derogation of the common law” is a wholly subjective conclusion rather than an objective canon of interpretation. The reasoning is that for every right limited, another is expanded.

Derogation: Typically means a common law right has been taken away. Remedial aka the Broad Reading Canon: Defined in Burch as statutes designed

to benefit or protect classes of persons who have been harmed or disadvantaged in some fashion

11/1/2010Implied Causes of Action:Some laws create causes of action (remedial?) and others limit them (derogation?)

Traditional rule: Courts would find implied causes of action from time to time often using the Court factor test

1. People among the class for whose benefit the statute was enacted2. Legislative intent, either explicit or implicit, to create or deny a remedy3. Consistent with the underlying purposes of the legislative scheme 4. Do federalism concerns mean that a cause should only exist under state law

Number 3, over time, became the predominant concern.Sandoval expresses the court’s new direction (Modern rule): If the legislature created the right, they should create the remedy. Otherwise, the remedy lies in the administrative agency or the attorney general. Under the modern trend, court’s want something in the text about a private cause of action.Constitutional Avoidance Doctrine: If a court can find a fair interpretation that circumvents confronting a constitutional question, then they will, sometimes, even when it leads to a twisted interpretation.Three question approach to constitutional avoidance:

1. What is the language at issue?2. What are possible fair interpretations?3. What role does the statute’s purpose play?

The Exculpatory No: Some jurisdictions hold that a denial of guilt is not actually a statement because they want to avoid invalidating a statute on 5th amendment grounds. Often, statutes require people not to lie to investigators.

11/8/2010Chevron deference (high deference, needs only to be reasonable)

Everyone agrees that when an administrative rule has force of law, i.e., (formal rulemaking, informal rulemaking, or formal adjudication)

The issue is nonlegislative rulemakingo Majority in Mead: It gets only Skidmore deference, i.e., “respect according

to its persuasiveness”o Dissent in Mead: It still gets Chevron deference as long as it is

authoritative as opposed to promulgated by an underlingo Barnhart: Chevron deference given if factor test met:

Importance of the legal question (clarity of authority given) Related expertise of the agency Importance of the question to administration of the statute Complexity of that administration Period of time the rule has been in place

11/15/2010Article I presentment clause: Textualists postulate that only that which goes through presentment is within the judicial purview.Agencies get power beyond checks and balances for four reasons:

1. Expertisea. Often Congress gives them express delegation of duties because of this

2. Efficiency/responsiveness (Congress acted slow on internet child porn, but agencies picked up the slack)

3. Political Accountabilitya. As opposed to nominated judges for life, agencies are subject to the

democratically elected president’s regime4. Generality

a. Its dumb to wait for a trial when you can nip problems in the bud through early promulgation of rules that clarify legislation

Skidmore deference: Weak deference: (1) Thoroughness, (2) Consistency, (3) Validity – the more of each of these that you have, the better chance of getting Skidmore deferenceClearly erroneous standard v. De Novo standard: Trial court facts are given the self-explanatory clearly erroneous standard whereas trial court law is reviewed de novo

Agency deference is somewhere in the middle.Chevron Deference: Strong Deference

1. Step 1: Is the statute ambiguous? Generally, if the statute is silent, it’s presumed that the legislature intended to delegate to the agency. (1st 11 weeks of semester)

2. Step 2: Reasonableness standard applied as opposed to clearly erroneous or de novo

Mead: Everything but nonlegislative rulemaking without notice and comment gets Chevron deference, for NL Rules Chevron may be applied based on the Barnhart factors or SkidmoreAuer Standard: When an agency interprets its own rule, the standard is the plainly wrong standard