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Temple University School of Law
Libonati, Michael E.

Legislation OutlineSpring 2011 – Libonati
Legislation = pragmatism & compromise, not theory.
Legislative Power:
–     The executive branch possesses legislative power via the Veto power.
o    Presidential, mayoral and governor veto.
o   2/3 super majority required to overcome veto. Often causes problems because change can easily be blocked. One party needs to be virtually veto proof to get anything passed. President only needs support of 33 senators to avoid an override, and thus has a large amount of bargaining power
o    Majority of governors have “Line Item Veto” which means they can take away specific allocations of funds. Specific programs, not entire category.
–     Appropriators decide what programs get funding on a federal level.
–     Executives can also set up regulations.
–     Legislative power also includes participation in the power to consent. Selection & Appointment.
o    Governor of New Jersey has very broad budget & appointment power without consent to anyone. Power to appoint to judiciary as well.
o    Advise & Consent : senators have “blue slip” power – can ‘hold’ a nomination of a candidate from their home state – no explanation necessary.
–     Investigative power also belongs to every legislative body, eg post 9/11 investigations.
o    Enforced through the sanction of contempt. Refusal to co-operate or testify = contempt.
“Programmatic Legislation” shifts power from the legislative branch to the executive branch by creating agencies with legislation. Then the power goes to the administrative agency’s rule-making. The task becomes shaping the regs that will implement the legislation. Again, using facts, arguments and alliances. (can still fight legislation that’s already been passed at this level)
Judicial Branch:
–     Law making ability? De Facto, yes. But really more interpretive.
–     Common law judges often become co-law makers through the interpretive process.
–     Formally, federal judges have no legislative power except what rule making power may have been granted to them by Congress. And even then, Congress still has final say on those rules.
–     PA State court judges have general supervisory power over all courts. Interpreted as a law making power.
o    Seems that PA Supreme Court judges have more law making power the federal SC judges!
–     In this way, the legislative branch can be more powerful than the judicial branch. Eg MADD raising the drinking age to 21 on a state level, and Pres. Reagan taking away highway funding from states who didn’t adopt it.
–     making de-segregation a prerequisite for federal funding under the Secondary School Act of 1968.
Popular Participation Lawmaking: people have direct say in legislative process.
(1) Initiative
(2) Referendum
(3) Recall
–     mostly west of the Mississippi; but also in Mass.
All states have right to petition to redress grievances. No matter how ‘horrible’ the person is.
Legislation as a Source of Law:
–     reactive relationship of legislative law up until now. Now, it’s a pro-active posture. We can participate and make a difference in this process.
–     Legislative courtesy is vital. Must check with all senators, committeemen etc that can have the power to make or break your appropriation.
–     Build support with (1) Facts, (2) Arguments and (3) Alliances.
–     Federal courts are governed by statutes. The Code, sentencing guidelines, Rules of Evidence, Criminal Procedure, etc. All of these attain their validity by the legislative process.
How do lawyers apply pressure to get statutes passed? We advocate. We collect facts & create policy. We make facts persuasive to the legislator we are advocating in front of. We treat them with respect and give them reasoned facts & policy.
–     lawyer legislators see constituents as “clients” and advocate zealously for them.
–     The idea of an independent expert does not exist in the legislative branch. The lobbyists and parties all have interests and an axe to grind.
–     Also helps to build alliances. Drafting a bill can wind up with a committee different than the one you intended it for. “Bill Reference”
–     There is a general tendency in the legislative branch towards oligopoly: only 3 important people in a state.
The Legislative branch is the 3rd House of the Legislature. – Don’t get hung up on strict separation of powers.
Comparison and Contrast between Legislative and Judicial Branches
Legislature                                                          Court
Committee Jurisdictions                     Jurisdiction/Notice Issues
May Vary by Chamber,                       Limited by Standing/Rightness/Mootness
Even if Same Name
No notice required                              Notice required
Commitees, have specialists                            Courts are limited to evidence rules and discovery process
                                                Structure of the Process
Legislation applies to everyone       Resolving a dispute that occurred in the past
Specific Case – if a rule comes out of the case, then it is only binding on A & B
Directly accountable to the public    Judges are not accountable
However, judicial recall may be available in some jurisdictions
Chapter 1:  Lawyers, Legislation & Social Change
What do the authors mean by “Social Change”?
Re: the Patriot Act v Civil Liberties / Privacy Issues
o    the Constitution is not a suicide pact
o    “judges are human beings”
Chapter 2: The Interaction of Legislation and Our Common-Law Traditions
            A. Legislation as Precedent
–     Pound says legislation doesn’t get any respect. It’s still true.
o    Shepardizing a case won’t tell you if the rule in a case was changed by statute law. (p 6)
Practicing lawyers need in-depth expertise in specific areas because of the subrogation of legislation. Being familiar with a specific statute in necessary.
Pound article “Common Law & Legislation” p 44
4 Four ways in which courts might deal with legislative innovations
the statute preempts the common law rule
receive it fully as not only a rule to be applied but also as a principal from which to reason, and as such, as a later and more direct expression of general will superior to judge-made rules on the same general subject
persuasive and not binding
receive it as a rule and a principal from which to reason, but give it equal weight as judge-made rules on the same general subject
liberal construction of programmatic legislation, but a court would reject any attempt to take an inference or use that statute as an analogy
refuse to receive it fully into the body of law and give effect to it directly only; refusing to reason from it by analogy, but giving it, nevertheless, a liberal interpretation to cover the whole field it was intended to cover
Strict and narrow interpretation and refuse to reason by analogy
they might not only refuse to reason from it by analogy and apply it directly only, but also give to it a strict and narrow interpretation, holding it down rigidly to those cases which it covers expressly.
Isn’t this wacky and reactionary? Are courts still this crazy 100 years after pound in an era of programmatic legislation?
                                                               i.      Need to know how to argue for and against the application of Pound’s 4th category
1.       against
a.       Codification freezes things, whereas we live in a dynamic changing, evolving time which allows for legal innovation. Instead of being a body of law that changes with the times, it would try to force people into a regulatory mold.
The Uniform Commercial Code §1-102 (p 45)
–          This Act shall be liberally construed and applied to promote its underlying purposes and policies
–          Underlying purposes and policies of this Act are
o    To simplify, clarify and modernize the law governing commercial transactions;
o    To permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
(This is a way of privatizing the law of contracts, instead of a regulatory approach of setting up unnecessary administrative hoops to jump through)
o    To make uniform the law among the various jurisdictions
–          Comments
–          -“The Act should be construed in accordance with its underlying purposes and policies. The text of each section should be read in the light of the purpose and policy of the rule or principal in question, as also of the Act as a whole, and the application of the language should be construed narrowly or broadly, as the case may be, in conformity with the purposes and policies involved.”
–          “It is our judgment that the Code itself and the general body of precedent developed by the Code states provide the most logical source material supplying the content of federal common law to govern suits arising from FHA secured transactions.”
–          UCC 102 was written in an environment similar to Pound’s 4th ca

Farnsworth, Implied Warranties of Quality in Non-sales Cases p 56
Advantage of Reasoning by Analogy (Five)
1.       Greater ease of adjusting legal rules to altered social conditions
a.       If a new duty is imposed, it is awkward and misleading for a court to explain that what yesterday was not a sale, is today a sale
                                                   i.      Courts have flexibility in dealing with altered social conditions? By approaching situations in a case-by-case basis, the court is closer to the facts
b.       The counter argument is that the legislature is better at fact-finding and has policymaking authority
2.       Avoids the application of sales rules that have no place in a transaction which is comparable to a sale only in respect to the supplier’s obligation as to the quality of his goods
a.       Say you have a situation that fits into Pound’s category 2, in that it is a clear expression of public policy, and lets say that the UCC covers fitness for intended use and applied it to bailment law (like in Cintrone), but that entire statute represents public policy. Not just one word, or sentence, or paragraph, but as a whole expresses policy
b.       Counter argument – what allows the court to do such selective application, where they reason by analogy sometimes and do not other times
3.       It can be used to extend implied warranties to many transactions which could not be defined as sales but which are so like other cases where warranties are implied that they should be treated similarly. If a jurisdiction implies a warranty in servive the food by a restaurant, a children’s camp, or a hotel
a.       Counter argument: are these categories really the same? Wouldn’t there be a higher duty of care in a hospital than in a restaurant (such as duty to screen for allegins)
4.       the fourth advantage is, in a sense, a reverse of the third. Not only is it easier to extend warranties to appropriate cases, but it is also easier to avoid extending them to similar cases which are merely homologous rather than analogous
a.       This, like 3, seems to allow expansion the discretion of the court to either reason by analogy or decline to
b.       That being said, this may be implicit in Llewellyn’s view
5.      lays bare the real reasons for implying a warranty, reasons which are only too easily obscured if the ultimate decision is to rest upon the denomination of the transaction.
Williams, Statutes as Sources of Law Beyond Their Terms in Common Law Cases
Advantages of Statutory Analogy
–          statutory analogy can provide a useful alternative to extensive interpretation by providing courts with a degree of flexibility in choosing the premises from which to reason
–          provides an important basis for common-law decision making by providing the legal backdrop against which the current issue appears.
Norcon Power Partners L.P. v. Niagara Mohawk Power Corp. 
–          Federal court is being called upon to apply state law. –  Isn’t any applicable federal law. – Not a sale of goods. Concerns electricity – 2 BIG companies.
–          UCC Doctrine of Anticipatory Repudiation: we don’t think you’re going to supply us with the amount of power that you have contracted to. Norcon wants a reassurance of ability to perform.
–          Statute, by its own terms, is not applicable. But it can be “creatively extended” when the court is so inclined.
–          Counter argument to result in case: These were sophisticated parties who would have drafting contracts if they don’t know where the default rules sit, this makes it harder to contract out of default rules if you don’t know how inventive the court will get with selective incorporation of parts of the UCC (argument against cintrone as well)