Leg Reg Outline - Summary Legislation and Regulation PDF

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Summary

Recieved an A in Professor Lavoie's Leg Reg class with this outline. ...

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Textualism:  Exclusive focus on statutory text -- Text itself is the force of the law  Literal application of language plain meaning  Originalist textualist: meaning should be from what the average person would have thought the text meant at the time of enactment.  Rejects “intent” ideas  Golden rule of textualism: even if on its face the text appears to mean something, if it results in absurdity it is not within the meaning  If ambiguity, pick interpretation most coherent with statutory scheme and larger body of law as a whole

Benefits

Consequences

 Uniformity/certainty in the

 Strict constraints of Textualism are NOT

law (i.e. a layperson should know, and expect the even-handed application of the law)  Democratic Legitimacy: keeps legislative authority in the hands of elected representatives o Dissuades judicial activism; works to constrain judges, they do not have legislative authority  Makes legislature more honest regarding what they are really doing. Expectations are higher for them to do their jobs properly and thoroughly

necessary to promote Uniformity / Certainty in the Law o Stare Decisis and similarity in training, appellate review, etc. can sufficiently curtail judges that make aberrant rulings  Democratic Legitimacy: legislatures cannot be expected to think of EVERY contingency when drafting statutes and expect courts (and the executive) to cover what was not thought of or was unstated. o That is, Courts have been DELEGATED legislative power in these situations by the legislature, so actions are sanctioned  The burden Textualism places on Legislatures to correct “mistakes” is too great. o Passage of corrective legislation is time consuming and wasteful  Often yields markedly unjust results in particular case and for citizens prior to enactment of corrective legislation  Textualist judges are as “activist” as other judges (deciding cases based in part on their own values), but they disguise their actions under a textualist cloak  The Rule of Law is more than just words. Statutes are the product of societal desires and laws not consonant with those values will ultimately be rejected by citizens. Thus, originalism improperly ignores the very

function of statutes by focusing solely on the statute’s text as understood at a moment in time. o Organic: is the law a changing thing such that it’s institutionalizing society belief i.e. same-sex marriage (does the law change over time or is it fixed?

Intentionalism: the will of the legislature/legislature’s intent  May rely on legislative history  Asking which intention would be better is irrelevant -- only determine what leg meant  What would this particular legislator’s intent have been?  In the absence of direct legislative guidance, focus on policy of statute → slides down the spectrum toward purposivism  Originalist (meaning of statute fixed at time of enactment)  “reconstructive/imagined” intent: if ambiguity, pick interpretation that judge believes the original legislature would have agreed upon if it had specifically considered the specific question at issue

Benefits

Consequences

 Democratic Legitimacy: keeps

 Legislative history is not authoritative and

legislative authority largely in hands of elected representatives o Judges constrained to act as faithful agents  Promotes legislative efficiency since Courts will fill in rule legislature would have adopted if it has thought of the situation

can be used to highlight views of particular legislators  No such thing as “intent” of the legislature since it is composed of many members who all have their own view about the law and its meaning, many of which could be contradictory o “The bargain”’ reached couldn’t have one unified intent; could lead to imagined intent

 Democratic Legitimacy: Legislative history

typically does NOT reveal the answer to a specific question, so judges have room to insert their own values in finding the legislature’s “imagined” intent o Encourages legislatures to draft sloppily or intentionally make language vague to deceive voters (or other legislators) of their true actions.

Purposivism:  Legal process theory  Judge to understand the fundamental purpose of the statute, faithfully advance that purpose  Purpose gleaned from statute’s text, legislative history, and other factors prompting legislation  However, if the statutory language is absolutely clear, then it shouldn’t be overturned based on policy considerations  Quasi –Originalist: While fundamental purpose must remain same, application of statute may vary over time as needed to implement purpose  Ambiguity: pick interpretation that judge believes will best further the fundamental purpose of the statute Benefits

Consequences

 Prevents unjust applications of the

 Often reasonable minds can differ

law to particular cases  Promotes legislative efficiency since Courts will fill in rule legislature would have adopted if it has thought of the situation  Acknowledges the role of the law as solving societal problems and that statutes emerge in a broader context than just the legislators involved

regarding a statute’s “purpose” and in any event there may be multiple (perhaps contradictory) purposes  Democratic Legitimacy: judges have wide latitude to insert their own values in finding the statute’s “purpose”  Encourages legislatures to draft sloppily or intentionally make language vague to deceive voters (or other legislators) of their true actions.

Pragmatism/ Dynamic Statutory Interpretation:  Produce the best results for society by practical reasoning  Unforeseen or vaguely addressed issues are delegated to the courts  Statutory text must be interpreted based on the fundamental purpose of the statute  Purpose gleaned from statute’s text, legislative history, and other factors prompting legislation  However, if the statutory language is absolutely clear, then it shouldn’t be overturned based on policy considerations  Quasi –Originalist: While fundamental purpose must remain same, application of statute may vary over time as needed to implement purpose  If ambiguity, pick interpretation that judge believes will best further the fundamental purpose of the statute Benefits

Consequences

 Allows the law to be applied in a rational

 Allows Judges to usurp the role

common-sense manner, and to adjust to societal changes without the need for new legislation  Promotes legislative efficiency since Courts will fill in rule legislature would have adopted if it has thought of the situation  Acknowledges the role of the law as solving societal problems and that statutes emerge in a broader context than just the legislators involved  Allows judges (as persons knowledgeable in the breadth of the law) to adjust particular statutes to create a coherent legal framework o Anti-majoritarian break: i.e. judges need to make decisions that are not a result of the majority opinion, that is the exact purpose of checks/balances  Interpretation left to judiciary, which represents a stable branch of government less vulnerable to rapid shifts in political alignment  More honest. All judges insert their values into their decisions to some extent and make legislative decisions. Pragmatic jurists acknowledge what they are doing, rather than try to hide it as just applying a “clear” statutory answer

of the legislature o Courts are illequipped to create legislative solutions since they must decide particular cases; reserevd for leg  Democratic Legitimacy: Gives unelected judges unfettered discretion to insert their own values in applying a statute  Creates uncertainty in the law, since meaning can change over time  Creates lack of uniformity in the law (unpredictible results) since each judge can develop his own meaning for statute based on his view of society’s interests.

Canons/guideposts of statutory interpretations: tools and forms of argumentation that can be made, can be used for different theories. Often contradict each other, even within same categories.  Linguistic canons: heavily relied on by textualists. Look at the words/language of the statute.  Substantive canons: not about language, about substance and how things should be construed.  Legislative sources: authority and history of the law. Linguistic canons: text of the statute is paramount.  Take a word and focus on it to understand, especially the ambiguous word. o Use words themselves: o Context of sentence

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o Whole act o Broader legal/statutory framework. Ordinary meaning: how words would be understood in everyday usage. Often with context. o Pick up your sister: physically lift her or drive to get her? Use context. Dictionary meaning: evidence of the meaning. Can differ by separate dictionaries and definitions. Legal/technical meaning: established in a professional setting, trumps the ordinary meaning. o Complaint: when a child whines VS complaint: when you file a complaint in court Underlying assumption: legislature knew what they were doing. o They chose the words they were using and is using them in the normal way. o BUT, there is a question of whether they really do know what the meaning of the words are. Golden rule exception: canon/idea that at some point, literal meaning of words can cause an absurdity, so we don’t use that meaning. Rare textualist argument for very strong absurdity. Immediate context: how did the words appear and with what words around them? o There are specific legal canons that address this. Some examples of linguistic arguments/canons: o Rule against surplusage: every word must be interpreted to have its own meaning. Words must not be duplicative/redundant. Using multiple words means there must be multiple meanings.  Assumes congress was very specific when choosing their words.  BUT remember that sometimes laws are redundant. Sometimes congress says the same thing twice and it doesn’t need to be interpreted differently. Sometimes they do it for emphasis or to fill a sentence. o Noscitur a Sociis: “it is known by its associates”. We must look at words in context based on other words around it. Often used in lists.  Ambiguous items can be clarified by other words around it: ex. Floors, steps, stairs, and passageways must be kept clear. Clearly this refers to walkways, not all floors always. Things can be put on floors but not in walkways.  Direct tension with rule against surplusage. Contradict each other. o Edjusdem Generis: “of the same kind”. In a list of words, a general, catchall phrase should be interpreted based on the characteristics of other things in the list.

Ex. List: apples, stars, oranges, grapes. It’s clear that “stars” refer to starfruits because the other items in the list are fruit.  Ex. Trucks, tractors, motorcycles, other motor-powered vehicles. Cleary wouldn’t include airplanes because the other items in the list are land-based motor-vehicles. o Expressio Unius est Exclusio Alterius: “reasoning by negative inference”  More prone to error than others.  Because we listed these things, it means these are the only things covered/included. Excludes all others.  Ex. “a corporation must make its by-laws available to shareholders” means no other information but by-laws need to be provided to shareholders. Grammatical rules:  And and or are different, important distinction.  “may” is permissive; “shall” is mandatory.  The word “including” makes a list non-exclusive. Doesn’t mean its only the things in the list.  Last antecedent rule: limiting/qualifying words refer to the last noun in a sentence. 

Linguistic canons cont: Whole Act rule: Courts should interpret a statutory provision in a manner consistent with the rest of the statute.  A word should take a consistent use and meaning in a statute.  Additional Corollary rules: o Exceptions are construed narrowly o Titles and headings are relevant to interpreting a statute unless provided otherwise. Can be used to make arguments. o Prefatory language (preambles, purpose clauses, etc.) are relevant to interpreting a statute. Modeled Statute rule:  Specific clauses/statutes trump general clauses/statutes  More recent statutes stump earlier statutes.  “No” repeal of earlier statute by implication. Legislature must specifically provide that earlier statute is repealed. o But if more recent statute contradicts older one, follow the newer one. Substantive Canons  Focus on presumptions/doctrine, like a “common law”. Focuses on a rule of law and not on text.

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Often stated in different ways, especially in the best formulation to support your position. o Example: Constitutional avoidance. o Stated in many different ways:  Always pick constitutional reading over other readings or  Decide case in a way that avoids constitutional reading at all. o Why?  Legislature wants its laws to be constitutional  Legislature didn’t perceive constitutional issue

Some examples of Substantive Canons:  Rule of Lenity: Ambiguous criminal statutes should be construed in favor of the criminal defendant. o Only for ambiguous and criminal o Only in cases where behavior is not obviously wrong (circumstances make it clear that criminal understood that what they did was wrong, like murder) o Reasoning: wrong to punish someone if they didn’t know that they did  This canon is fairly weak, judges can avoid it by arguing legislative intent to punish was unambiguous.  The sovereign is not included within the meaning of “people”  Constitutional avoidance: avoid interpreting the Constitution if you can  Statutes in derogation of common law narrowly construed o Similar to no repeal by implication, but for common law. o If a case/common law maybe could be overruled by a statute, we don’t assume that it overrules unless it specifically says that it does.  Less relevant now because statutes often supersede case/common law  Presumption against federal preemption: federal law generally has supremacy over state laws BUT o Doesn’t necessarily repeal the state law, unless you really can’t find a way for them to coincide. o We presume that the state law survives unless clearly indicated otherwise by Congress  Can be indicated generally by congress where they want to completely control the law on an issue. (ex. Control of subject area “occupies the field”) A few presumption substantive canons:  Presumption of Indian tribal immunity: Indian tribes have their own laws  Presumption that law is consistent with treaties/international law  Presumption against retroactive laws: if it doesn’t specify that it took effect earlier, then it takes affect when passed and doesn’t apply to the past.

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Presumption against derogation of judicial powers: limits/prevents rules from restricting judges/judicial powers. Presumption in favor of judicial review: don’t presume that a law restricts the ability for a court to take on an issue/case unless specified

Legislative context and history:  Context: What was going on when the law was enacted and what gave rise to the law? o Textualists are willing to consider this (public info and what people would have known at the time)  History: What congressional committees or members said about the bill or similar post-enactment statements. o Textualists reject this generally. They think this is too hard to determine, too easy to abuse, and generally not relevant. Types of legislative history:  Committee reports (house, senate, conference)  Statement of sponsors  Deliberations and debates in legislature  Hearings  Post-enactment reports and statements  Legislative inaction: a case is decided, and congress doesn’t react/overrule. Maybe they don’t want to change it or support this interpretation. Regulation and Administrative Agency: Administrative law:  Courts interpret statutory meaning, but due to litigation context, Courts typically don’t consider a statute’s meaning until many years after enactment. o The courts wait until a lawsuit arises where the law is challenged. Interpretive v Legislative regulations:  Interpretive regulation: Administrative agencies come out with regulations, which are interpretations of the law. Says what the agency believes the statute/law means. o The courts defer to interpretations much less, may go against these interpretations.  Legislative regulations: Statutes can delegate legislative authority to administrative agencies who are told to create/elaborate on the law. Functionally indistinguishable from a statute.

o The courts will typically look at this regulation as a grant of legislative authority, and typically they defer to this. Doing otherwise would usurp this delegation of power. o Courts are very reluctant to overturn this legislative decision by the executive. o Typically requires delegation from congress, but there have been times where an ambiguous statute “implied” an intended delegation. This “implied authority” is still debated.  When it becomes less clear which type of regulation it is? o Maybe congress knew that a term was ambiguous and that means there is an implicit delegation to the department of transportation to fill in the gaps. So maybe its legislative even though it doesn’t mention an administrative agency. Administrative Procedure act: APA  Enacted in 1946 in 5 USC.  Provides common framework for all administrative agency rulemaking activities. o Idiosyncrasies exist agency to agency.  Provides framework for judicial review.  Policy: if agencies are going to legislate, they must be subject to checks and balances. o If they exercise legislative authority  Governs both adjudication and rulemaking. o We focus more on rulemaking. What are the procedural hoops under the APA to make a valid rule? Types of Rulemaking under the APA:   

Formal rulemaking (for legislative reg) Informal rulemaking (for legislative reg) Other guidance: (not legislative regs) o Procedural rules o Interpretive rules o Policy statements

Formal rulemaking: for legislative regulation   

Requires oral evidentiary hearing in a trial-like setting. Can go on for years. So cumbersome that it is seldom used in practice. Very vulnerable to being overturned by the courts under “arbitrary and capricious standard”. Applies only if statute requires that “rules are required to be on the record after a hearing.”

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o If congress doesn’t want a statute heavily regulated, they may add this provision to strictly limit or eliminate regulation. Arbitrary and Capricious Standard: the regulation is procedurally inappropriate or not correctly analyzed/weighed. Didn’t refute all of the counter-args. o Rule is invalid if the regulation is A and C.  Did the agency rely on factors that congress didn’t intend?  Fail to consider an important aspect of the problem?  Offer an explanation that was counter to the evidence before them?  Most common  So implausible that it doesn’t represent a difference in view or expertise?

Informal rulemaking: for legislative regulation 

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Three step process for legislative rulemaking. Can still take years. o Notice of proposed rulemaking o Receipt and consideration of comments, typically including a public (rant) hearing. o Issuance of final rule, with statement of basis and purpose. Has been efficient in the past but is less so today due to A and C standard. o Opponents will load up process with contrary arguments and evidence and the agency must address these comments when stating its basis. Advantages: o Better rules since all views are heard and considered as well as the impact of alternative rules. o Fairer due to advance notice of rule adoption and opportunity for input o Efficient manner to address recurring issue by agency expertise. o Increases political accountability because elected officials play a role in agency actions.

Non-legislative ...