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Legislation And Regulation Outline

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Regulation & Common Law as Regulation MacPherson v. Buick
? CARDOZO gets rid of privity o Imposes costs on Buick to make their product safer proactively
? One important theme of Leg / Reg is "how does a rule change behavior, reduce risk, and increase safety?" Rotche v. Buick
? In response to MacPherson, Buick instituted rigorous series of inspections
? Statutes and regulations, unlike tort law, are prospective and can anticipate harms, are clearly defined rules, and are immediately binding
? Overall, common law / adversarial process through tort and contract may not be the best tools to make cars safe and safe cars available / affordable, BUT common law might have better self-correction methods than statutes because, with statutes, there's almost always someone with a vested interest in keeping the statute active (e.g. school lunches)
. II. Legislation and Statutory Interpretation A. The Legislative Process
? PUBLIC CHOICE THEORY - regulation/legislation as product of political process in which parties w/ power enlist gov coercion to achieve goals o concentrated/well-organized interest groups o public choice theory: notion that smaller groups have disproportionate influences on political process
? this makes it so that widely but not intensely supported stuff might not make it into the political process
? Social Choice Theory: multiple preferences -- becomes difficult for voting to sort out, leads to cycling, which creates an opportunity for strategic behavior (i.e. insincere voting in first round if it will help you reach your ultimate goal)
? Arrow Theorem - we end up cycling due to people's inconsistent preferences, so we have to schedule a vote in a particular order and have to have a cutoff point for the vote o depending on voting order, we'll get different results o the person who controls the agenda has, at least, a disproportionate influence on how things turn out o when Arrow Theorem used, this immediately provides a caveat to the notion of investing in legislative intent
? People aren't always rational with their votes -- could have difference between individual preferences and what you vote for as part of your social role
? Path to get from bill - ratified law incorporates many vetogates o high possibility that the bill will die

1 o o





First, a member of congress must sponsor the bill. The more sponsors, the better. Once introduced, the bill heads to the relevant committee/subcommittee in the House or Senate. Committees help divide the house's labor and are composed of members with expertise (or strong constituent interests) in the subject areas. The committee holds hearings, and expert members of the public are invited to give their opinions. Lobbyists, academics, and other experts may all testify (who is invited is usually subject to the political tilt of the staffers who invite them). Once the committee approves the bill, it goes to the Rules Committee (House) or directly to the floor (Senate). The Rules Committee is the "traffic cop" which ensures that the most important bills get to the floor. Once on the floor, the bill is deliberated by the whole body, and individual members propose amendments and make statements in support or opposition. In the Senate, an individual member may filibuster the bill and prevent a vote. Once both houses have voted in favor of the bill, they convene a conference committee to reconcile the competing versions of the bill. The conference committees then deliver their final version to both houses for a final vote. If passed by both houses, it then goes to the president for signature.

Vetogates = presumption against legislation o forces building consensus o federalism - preserving state power o reduces risks of hasty legislation o 7 Vetogates: (actually 9...)
? Committee in one House refuses to consider it
? Committee takes it, votes not to advance it
? One of two Houses amends it to death or votes it down
? Senate filibuster; can't get 60 cloture votes
? Conference committees fail to reach agreement
? Either House rejects committee bill
? Presidential Veto B. Statutory Interpretation: The Basics AUTO SAFETY:
? delegation to Secretary of Commerce o vehicle safety standards, interpretation of standards, studies/research to create those standards
? WHY delegate?
o expertise vested in the position
? safe auto systems subject to rapid turnover rate2

? hard for Congress to keep up w/ changing tech (in theory) not subject to political pressures o Congress' selfish move - insulating THEMSELVES from unpopular regulations RIGGS V. PALMER: guy poisoned grandfather to inherit faster
? Statute says that no will shall be altered, except in enumerated circumstances. The law makes no explicit exception for a murderer of the testator.
? MAJORITY: we should effectuate legislature's obvious INTENT
? DISSENT: So much detail in procedures --> by NOT including murderer exception, legislature meant not to include it
? JUDICIAL "FIXING" - look what intent of statute MUST HAVE been + we will set terms as legislature WOULD HAVE set terms if they thought about this o PROBLEM: when do we know sthg that makes sense but wasn't included ACTUALLY ought to be invoked?
o Reliance interests are not a problem in this instance, but they can be. Judicial "fixing" can create a notice problem, where people have conformed their behavior to the text of the statute. C. Textualism and some Intentionalism PROGRESSIVE V. HARRIS, SMITH: statute lays out what notice must be given to policy purchaser; P didn't stick to the verbatim language in statute; replaced w/ synonym (replaced "liability" in the statutorily mandated clause with "responsibility.")
? STRICT TEXTUALIST = role of the judge is NOT to figure out what legislature WANTED, but what it ACTUALLY DID o If we allow legislative intent to rule, maybe we are undermining democratic lawmaking process (bypasses vetogates)
? CT: textualism, not individual judge's policy preferences, should determine statute's interpretation CHURCH OF HOLY TRINITY V. UNITED STATES: STATUTE: you can't ENCOURAGE, ASSIST, PREPAY somebody to come and offer "labor or service" in the US; Pastor was contracted to come to the US
? Evidence of Congress' intent: o TITLE of the act says "labor," suggesting manual labor, which would exclude a pastor; but there's a problem, in that the language of the operative provision says "labor or service," and excludes certain professions that clearly aren't manual labor, meaning other professions would be included. A number of "brain-toilers" are specifically exempted from the Act, but not clergy. Expressio unius est exclusio alterius. o TEXT of act = labor or service "of any kind" o EVIL that the statute was designed to remedy = keep out foreign unskilled labor o LEGISLATIVE HISTORY - Senate Committee Report only covers manual services o History as a Christian nation o

3 NOTES: o first SCOTUS case to turn on importance of legislative history o Any court probably won't do this broad, inferential exercise ever again TEXTUALISM V. PURPOSIVISM:
? Both agree that Congressional intent is the ultimate goal
? TEXTUALISM: statute's TEXT is the only thing we should look at to glean Congressional intent o Favoring ordinary meaning, rather than technical meaning
? PURPOSIVISM: Look at the text first, but if unclear, OK to look at other sources o legislative history, social circumstances at the time of enacting Congress, letters/hearing records, etc...
Purposivism v. intentionalism
? Purposivism is broader than intentionalism. The court looks at the problem that the law was meant to remedy, and renders the decision which best serves that purpose.
? Intentionalism is based on getting "inside the mind" of Congress. The court tries to determine how the legislature would have dealt with the presented fact situation.BROGAN V. US: 18 USC 1001 - false statements become punishable to protect gov against fraud. Exculpatory no = crime to say "no" to whether sb did/didn't do sthg if that "no" is a lie
? History of the statute: drafted during the Civil War, in order to penalize contractors who lied to and swindled the government. 1918: The law is expanded to forbid anyone from lying to the government with the general intent of defrauding the U.S. 1934: expanded again, in response to the expansion of the federal government under the New Deal. Language expanded to cover lying about "any matter" to "any department" or making "any false representation."
? It's clear from the history of the law that it is intended to criminalize private acts of fraud against the government; nevertheless, the plain wording of the statute can't be read any other way except to criminalize the exculpatory "no."
? From D's perspective, purpose of the statute was to stop the perversion of government functions (people making misleading statements to government agents). This purpose wouldn't be served by simply adding 5 years to somebody's sentence for an otherwise minor offense; government agents expect to deal with criminals denying their crimes.
? Consequences of a purely textualist reading: entrapment, piling on an offense (kind of an absurd result)
? RBG's concurrence: "Hey Congress, it'd be sweet if you'd change this law. Dicks."
? main point: difficult to fix statutes US V. MARSHALL: The LSD Case. Minimum sentences triggered by gross weight of "mixture of substance" 4


strict textual/technical interpretation/grammatical interpretation lends itself to LSD on paper being considered a mixture statute treats different drugs differently - the fact that the language for LSD does not make the same distinctions means the legislature MEANT to deal w/ LSD in only this way = expressio unius DISSENT (POSNER): policy-oriented purposivism o if Congress understood how the drug econ works, they wouldn't have made this kind of law that leads to funky results
? ie. harsher punishment for less LSD just b/c of paper's weight

NIX V. HEDDEN: p. 238; is tomato a fruit or vegetable?
? ORDINARY MEANING is preferred, unless industry usage is appropriate o who is this law to give notice to?? industry members
? CT: but when do normal people eat vegetables? w/ main dish? or w/ desserts?
o ordinary meaning = tomato as a vegetable
? main point: when different meanings (dictionary, common usage, industry usage) conflict, basis for choosing may be difficult MUSCARELLO V. US: p. 242; "carrying" a gun - on the person or beyond that?
? Federal statute decrees that if someone who commits a drug crime "carries a weapon" in the process, he is subject to a mandatory 5-year, non-consecutive sentence (25 years on the second offense). If D carried two weapons at the time of the crime, a mandatory 30-year sentence is triggered
? MAJORITY: carry = beyond just "on the person" o dictionary, origin of the word, biblical usage, newspapers/publications o Using other indicia to get plain meaning of text, this text still not ambiguous enough to use rule of lenity
? DISSENT: we should invoke rule of lenity b/c "carry" is ambiguous o if it's ambiguous, for notice and fairness purposes, should be interpreted as most favorable to D o MAJ was cherrypicking their sources to support their definition of "carry"; just as many sources saying the opposite o even textualists can get on board w/ rule of lenity b/c its source is in the constitution, which trumps statutes and certainly judges on opinions (hence Scalia joined dissent) CANONS OF CONSTRUCTION (TEXTUAL) - interpret statutory lang. based on surrounding text
? Semantic o Expressio Unius - if something not included, not covered by the statute o Ejusdem Generis - LISTS; general terms in lists confined by previous specific items in the list ("pistols, handguns, or other dangerous weapons") o Noscitur A Sociis - specific, but ambiguous term interpreted consistently w/
surrounding words 5

Last Antecedent Rule Conjunctive v. Disjunctive (And vs. or) o May v. Shall Whole Act o inference of consistent usage w/in entire statute o identical words would be used consistently o redundancy/surplusage - AVOID o titles and provisos - more of affirming power; rather than controlling weight Whole Code o in pari materia - statutes addressing the same subject matter should be read as if they're 1 law o repeals by implication o inferences across statutes - even though unrelated, similar language allows for drawing inferences o o?

? Statute gives Sec. of Interior authority to prevent the "taking" of endangered species. "Taking" defined to include "harm" to animals, which the Sec. interpreted to include harm to their habitat
? Scalia's dissent would give "harm" the narrower definition, partly based on the common meaning of the word (textualist's look) o Noscitur a sociis - term gains meaning from the surrounding words; "harm" surrounded by other words applying to individual creatures, not entire species o Also, various provisions of the law (whole act canon!) elucidate meaning; for example, Sec. has the power to buy land to protect the habitat. The Sec. has a specific way to protect the habitat built into the statute, making "harm" surplusage if it's interpreted broadly
? But the majority cites the canon against surplusage for their side, saying "harm" has to add something to the definition of "taking," and it would just be repetitive to say "injure" and "harm" if "harm" doesn't cover broader dangers, such as to the habitat TVA V. HILL: (snail darter) SS 7 is at issue - directive to fed agencies to not take action that jeopardizes endangered species [WHOLE CODE CANON-Y FOCUS]
? TEXT: o authorization happened in the past, funding continuing now o statute's text would shut down this already-approved project
? absurd result - but statute is what Congress legislated; we will give them what they said they wanted
? PROBLEM: appropriations bills passed indicates Congress wants this to go through, no?

6 LEGISLATIVE HISTORY o agencies just need to protect species insofar as is practicable BUT AMENDED
? no "practicable" language in 1973 Amendment
? easier to violate
? Congress considered keeping the practicability exception in the Act but purposely did away with it.
? So is there repeal by implication via appropriations bills?
o NO - presumption against implied repeal for appropriations bills (presumption FOR repeal for other substantive acts)
? Congress doesn't want contradictory language sneaking into appropriations bills o Dissent: yes. o House Rule XXI: appropriation shall be read as amending an existing law.
? DISSENT (Powell): no retroactivity of ESA o Holy Trinity arg: it would be absurd if Congress meant to pass $ bill and not mean to spend it on the intended plan
? DISSENT (Rehnquist): balancing of saving snail darter v. all that money going to waste CANONS OF CONSTRUCTION (SUBSTANTIVE)
? presumption against extraterritoriality: If a federal statute is meant to apply outside U.S. borders, it must say so explicitly.
? presumption against preemption: If a federal statute is meant to override state law, it must say so explicitly.
? remedial statutes- interpreted really broadly
? rule of lenity: If a criminal statute is ambiguous, it should be construed in the defendant's favor.
? constitutional avoidance/constitutional savings: If the court must choose between an interpretation that forces it to answer a constitutional question and an interpretation that allows it to dodge the constitutional question, it will choose to dodge. (Presumption: Congress does not pass statutes which contradict the constitution).
? absurdity
? scrivener's errorUS v. Locke p. 331
? Scrivener's error. Mining claim filed 1 day late, based on info given to the filers by a government employee. The filers claimed it didn't make sense for the date to be what it was in the statute (30th as opposed to 31st of a month with 31 days) but the court held that, as all dates are inherently arbitrary, we can't just assume this was an error. It would have been different if the statute had said, say, February 30th, clearly demonstrating an error and requiring the court to rewrite it. 7

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