Professor Krishnakumar Fall 2017
This course is about “process,” rather than the substance of a specific area of law
2 Questions you always have to ask:
Whether the normative policy or empirical data assumption is underlying the statute or the judge’s approach to the statute?
Should the branch (legislative/executive/judicial) of the government that’s making the particular decision make that decision? What would the other branches react if one particular branch makes a decision? Should we change the design of the institutions?
Statutes are the product of a lot of political compromise
Omnibus legislation: instead of passing one law at a time, many laws are bundled together into one bill (they may or may not related to one another)
Case Study: Civil Rights Act of 1964
The role of each player in the passage of Civil Rights Act of 1964
President has a lot of agenda setting power institutionally (much more than any legislator)
Biggest advantage in pushing Civil Rights Act: introducing the legislation to show a commitment to civil rights (good publicity for himself)
but set up authority for attorney general (Robert Kennedy – his brother) that’s not too strong
JFK doesn’t really want a very strong civil rights act
First thing he did was public campaign to build support for the legislation
Focused a lot on clergy, because it is strategically important for legislators who didn’t have labor or minority constituency
Legislators whose constituency does not include minorities or labors wouldn’t care to support civil rights act. However, if their constituency includes the clergy (or religious people), and the clergy supports civil rights act, they would have an incentive to support civil rights act
In the House of Representatives:
Manny Celler (D- NY), Chair of House Judiciary Committee
Motivated by his principle/belief but also did not have to worry about re-election because he was so popular.
He could act like a trustee, doing whatever he thinks is good for his constituency, which supported civil rights legislation
Republican: wants some credit for himself and his party in the passage of civil rights act (can’t let the Democrats get all the credit in the even that civil rights act passed)
McCulloch (R- OH), Chair of sub-committee number 5
Celler made a strategic decision to send the legislation to sub-committee number 5, because McCulloch was committed to civil rights.
In the past, civil rights legislations were watered-down in the Senate after they left the House. So this time, Celler made the legislation very strong in House (Amendments in Senate was expected – so start out with strong bill to give conservative Senators room to score points with their constituency but still end up with an acceptable bill)
Southerners in the sub-committee voted for the bill, because they think the bill was too far-left so won’t go beyond the sub-committee (expected the bill to be defeated in the committee)
BUT, people self-select themselves to the committee, because they have particular interest in the subject matter.
McCulloch thinks this is a disaster (he thought the southerners’ strategy was going to work).
Accordingly, JFK meets with House Republican leaders to have the bill adjusted back
Liberal Democrats actually negotiated to weaken the bill
Final bill out of committee had stronger public accommodations including private companies in Title II
Note that nobody was really voting for his/her policy preference (they are voting strategically)
Judge Smith (D- VA), Chair of Rules Committee
After the bill passed the Judicial Committee, it went to the Rules Committee, which was controlled by Judge Smith.
Rules Committee is the strongest committee with control over the process: can kill bills by not reporting them out, create a closed rule that prevents any amendments, or create a modified open rule. Can also structure how debate happens on the House floor.
Every bill passes through the Rules Committee, where a resolution governing floor debate is prepared.
The day after the bill passed judicial committee, JFK was killed. LBJ appealed for public sympathy in support of the passage of the bill.
Smith hates civil rights legislation (wants to kill it or take all the teeth out of it).
The bill has to pass the Rules Committee before it gets to the House floor. 3 people negotiated with Judge Smith, threatening to force the bill to House floor with sufficient number of votes
When the bill gets to the floor, Judge Smith offered an amendment, adding sex discrimination to Title VII, which originally only included racial discrimination
Judge Smith doesn’t care about women’s rights, he just wanted to create more opposition to the bill (many people were opposed to women’s equality)
ision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex or national origin.”
Cannot just make up any test, the test has to be related the ability to perform the job.
Fourth Circuit ruled that high school diploma requirement is ok as long as it is applied equally to both black and white.
Congress actually talked about this very thing on the floor- some people raised the concern that Title VII might interfere with employers’ ability to test employees, and didn’t want the EEOC to tie the employers so much à therefore, all this statute is about is prohibiting intentionally discrimination, not a prohibition against general intelligence testing.
Dissent: EEOC made its determination, and court should defer to the determination, which is not unreasonable.
Administrative agencies are part of executive branches.
The history has taught us that there are many practices that are objective in form, but in fact favor whites. If we allow those, the goal of Civil Rights Act will not be realized.
The legislative history is consistent with this interpretation
The Supreme Court agreed with dissent on appeal.