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Theories Of Legislation Outline

Law Outlines > Legislation and Statutory Interpretation Outlines

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I. Theories of Legislation 1) Pluralism/Public Choice Theory
* Pluralism: Statutes are products of competing and interacting interest groups, and certain groups' interests will be shut out.
* Interpretive implication: Congress should engage in publicspirited interpretation. More deference should be given to statute that has diffuse benefits than one that has concentrated benefits, and more deference should be given to group whose interests have been shut out. Risk of this is judicial activism.
* Special interest legislation
# targeted tax breaks
# industrydriven legislation
* Public Choice: politicians are rational utility maximizers who try to maximize their own interests. Costs of statutes, and their benefits, might be either concentrated or diffuse
* Interpretive implication: Posnerian L+E theory implies that satute should be treated as contractual negotiation---each person's interests + compromises in deal ought to be retained in statutory interpretation. Concentrated costs, diffuse Concentrated costs, concentrated benefits"entrepreneurial" politics? CRA benefitsinterest group politics sex amendment was advertised as this, but it was really diffuse costs + diffuse benefits Diffuse costs, concentrated Diffuse costs, diffuse benefitsmajoritarian benefitsspecial interest/client legislation politics

2) Proceduralist/Deliberative Theory
* There is "finely wrought" process whereby Congress enacts statutes, giving Congress high legitimacy
* Because any piece of statute has to pass many vetogates, they should be given much deference
* Median voter theory of legislative purpose: who among vetogates is "median voter"?
* 51st %tile in House
* 60th vote in Senate (filibusters---used to be 67th vote)
* Median committee member
* Committee chair
* President
* Conference committee
* Interpretive implications are divergent:


Has been used to support textualism
# legitimacy of text (has withstood vetogates) used to criticize congressional inaction arguments
# look 4 corners of document to preserve deals made
* Has been used to support legislative intent
# Legislation is series of deals, and as with parol evidence in contract, legislative history is evidence of deals
# Best way to determine purpose is to look median voter (but then raises question of who is median voter?)

3) Positive Political Theory and Institutionalist Accounts
* Creation of statutory meaning is an ongoing, interactive process that plays out over time
* Multiple institutions, including agencies, legislative branch, executive branch, judicial branch, interest groups participate and interact to give meaning? actors are sophisticated and understand this interactive game
* Congress enacts statutes understanding where each of players lie on spectrum, and will try to please median voter
* Interpretive implication: Should courts give deference to other interpreters (agencies), or look to current Congress?

How a Bill Becomes a Law Drafting of bills (by legislative staff, government agency, interest group, academic) HOUSE

2. Introduction of bill by member (appropriations and revenue bills typically originate in House)

3. Referral to Standing Committees

4. Committee Action (can be forgone by discharge petition by 1/2 House)
* 3 steps: 1) consideration 2) markup 3) report: a) exact language of bill b) sectionbysection

1. analysis of bill c) procedural and substantive background

Can be referred to subcommittee
* Hearings held on major bills
* Committee resolution: take no action, defeat, accept, or amend and report

5. Voting out of committee

6. Rules committee (major bills)

7. Floor debate and amendment (passage or defeat) SENATE

8. Referred to Standing Committee

9. Committee Action

10. Floor action---note filibuster option CONFERENCE COMMITTEE
* If House + Senate pass differing versions, conference committee can be created with members from each house? each house must agree to conference report

Appeals of committees
* Specialization + expertise

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