Legislation Outline

Proceduralist theories

• Vetogates: points at which a minority can kill or maim legislation.

• Liberal theory: statutes should be hard to enact.

• Republican theory: the deliberative value of process.

• Arguments against vetogates: interest groups as rent-seekers; legislative gridlock; empirical evidence that deliberation produces more extreme views (preference outliers).

• The pluralist, rather than procedural, theory of legislative process is that the legislative process is a transaction between those demanding statutes (interest groups) and those supplying them (legislators).

  • Easterbrook: If we view statutes as designed to overcome market failures, then it makes sense to construe them liberally. If, however, statutes are designed to replace the outcomes of private transactions with monopolistic ones, the judges should construe them strictly.

  • Eskridge: construe distributed benefit/distributed cost laws liberally, developing them in the common law fashion; construe distributed benefit/concentrated cost laws and concentrated cost/distributed benefit laws in accordance with their public interest justifications; construe concentrated benefit/concentrated cost laws with restraint, and don’t attempt judicial updating unless affected groups are not able to get the legislature’s attention.

Griggs v Duke Power Co (4th Cir 1970)

• Section 703(a) of the Civil Rights Act prohibits job discrimination on the basis of race, sex, religion, or national origin.

• Duke Power had only employed black workers in its labor department. In 1965, Duke allowed employees to be promoted out of labor by passing one of two high school equivalency tests. The EEOC interpreted § 703(h) (“provided that such test . . . is not designed, intended, or used to discriminate . . .”) to mean that tests are unlawful unless they are properly related to specific jobs and have been properly validated.

• Majority interprets the statute as prohibiting only intentional discrimination.

• Concur/dissent: would defer to the EEOC. A neutral superstructure built upon racial patterns that were discriminatorily erected in the past comes within the Title VII ban.

  • You could read the dissent as deferring to the EEOC or as reflecting the preferences of the 1970, rather than 1964, Congress.

• Reversed (US 1971): The EEOC’s rationale for an effects-based approach derived from the statute’s purpose. “Congress directed the thrust of the Act to the consequences of employment practices.”

Substantive limitations on the legislative process

• State constitutions generally impose more of these. Madison’s argument in Federalist #10 was that larger geographies are less vulnerable to rent-seeking, so this might explain the lack of federal limitations.

• Many states have generality requirements. Among these are public purpose requirements, rules against special legislation, uniformity requirements (e.g. uniform taxation), and single-subject rules.

Department of Education v Lewis (Fla 1982)

• State legislators passed an education appropriations bill that denied funding to publicly funded colleges that permit the meeting of groups that advocate premarital sex. The state constitution had a single-subject rule for appropriations bills.

• Majority: The proviso attempts to make substantive policy, and is not directly and rationally related to the appropriation of state funds to postsecondary institutions and students.

• We can understand the single-subject rule as protecting the governor’s line item veto, since he won’t take heat for vetoing something popular attached to an otherwise unpopular bill.

Clinton v City of New York (US 1998)

• Majority (Stevens): In effect, the President has amended two Acts of Congress by repealing a portion of each. There are powerful reasons for construing constitutional silence on this issue as equivalent to an express prohibition.

• Concur/dissent (Scalia): There is no difference between Congress authorizing the President to cancel a spending item and authorizing money to be spent on a particular item at his discretion.

• Dissent (Breyer): Imagine that the statute allowed the President to void a provision based on certain factual determinations. In that case, he would be following the law, not repealing it.

• Stevens makes the formalist argument about prescribed veto procedures. Breyer makes a functionalist argument that the option not to spend is an executive function.

Statutes as principled law: the decline and fall of formalism, 1890–1940

• Common law formalism: law is an object to be discovered by neutral judges through common law, while statutes are disorderly and should be narrowly construed.

  • Blackstone contrasted reasoned, objective judicial decisions against disorderly, subjective legislative decisions. Statutes are ad hoc, while judicial decisions are part of a historical pyramid.

• Legal realism: law is a subjective, social struggle that should be viewed pragmatically.

  • Holmes: experience, not logic, is the life of the law; the goal of the law should be pragmatic and utilitarian rather than formal.

  • Cardozo: the law’s legitimacy is tied in some way to reason, so the effect of statutes will be tempered by principle. (Think of Riggs v Palmer.)

  • Brandeis deepened Holmes’ critique of the Lochner judiciary: its decisions reflect a power grabbines that was beyond the competence of the judiciary.

  • Frankfurter: government’s aspiration depends not just on the enactment of good legislation and judicial deference to those legislative judgments, but much more upon their elaboration and application by an expert administration.

State v Warshow (Vt 1979)

• Defendants protested the safety risks of a nuclear plant and were convicted of criminal trespass after the court refused to permit the jury to hear their necessity defense.

• Majority (Barney): common law formalist limitations to the necessity defense. There must be an imminent, compelling emergency; no reasonable opportunity to avoid the injury without committing the criminal act; and the injury must...

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