Statutory interpretation outline
I. Creation of the law Page 2
A. legislation at the federal level Page 2
B. Theories of representation Page 5
C. Theories of legislation Page 6
D. problematic features of the constitution Page 7
II. Direct Democracy Page 8
A. Structure Page 8
B. Theories of how to interpret Page 8
C. Direct democracy ↔ deliberative democracy Page 9
III. Stare Decisis Page 9
A. Why does it exist Page 9
B. Types Page 10
C. vertical and horizontal Page 10
IV. Theories of interpretation Page 10
A. Intentionalism Page 10
B. Purposivism Page 10
C. Textualism Page 11
D. New Textualism Page 12
E. Economic theories Page 15
F. Legal Process theories Page 16
G. Pragmatic theories Page 19
V. Canons of interpretation Page 19
A. Textual Page 19
B. Substantive Page 22
C. Extrinsic Sources Page 24
VI. Administrative law Page 25
A. Overview Page 25
B. How the courts deal with it Page 28
1. Chevron Page 28
2. Mead Page 30
VII. The symposium Page 33
I. Creation of the law
A. legislation at the federal level
a. bill introduced
i. in house it is “put in the hopper”
ii. in senate: Members must gain recognition of the presiding officer to announce the introduction of a bill during themorning hour. If any senator objects, the introduction of the bill is postponed until the next day.
b. bill goes to committee
i. First vetogate! Bill can “die in committee”
– Bills in the House can only be released from committee without a proper committee vote by a discharge petition signed by a majority of the House membership (218 members).
ii. Committees are really anti-majoritarian but there are arguments for it. committee system is supposed to
– relieve need for general expertise
– promote deliberation, stability, maintaining the status quo
and preserve state’s rights
– problematic because they create perfect lobbying target and ppl tend to get on committees that serve their constituents and they therefore don’t always serve general good
iii. In house, bill goes to rules committee before going to floor
the civil rights act of 1964
is an example of the very complicated process of legislation. It was intiated at the “right time” when President Kennedy went on tv to support civil rights and had support in the house and senate. The “right” committees were controlled by civil rights supporters and they strategically maneuvered around the rules committee! It represented a “deal” between pro civil-rights republicans and democrats that was in opposition to southern democrats
Griggs, 1970, page 42: To promote employees, Duke required high school diploma (1955) and testing (1965 – in response to act).
Issue: Are disparate impact lawsuits allowed?
Holding: at the lower court, no, but it was reversed at the SC.
Majority (Boreman): legislative intent was that intelligence and ability tests are not invalidated if fairly administered.
– Court not bound by agency, EEOC
– Interpreted statute as written in 1964
-Legislative history of only senate
– Fixation on senator because senate filibuster is most difficult vetogate
Leib’s comments: may not be accurate to rely on senate speakers because they may not represent majority of the chamber – can say what they want and may not be the reason other senators vote the way they do.
Dissent by Sobeloff
– precedent: other cases of unintentional discrimination
– plain meaning: the statute makes it clear that
– legislative history: looks at a different legislative history – should follow the EEOC
The Supreme Court unanimously reversed and expanded on Sobeloff’s decision.
Holding: a facially neutral employment practice that was not demonstrably discriminatory in purpose was nonetheless unlawful if it had the effect of excluding a group on the basis of race and without a strict showing of business necessity.
Notes on Griggs
EEOC and Supreme Court were moving the statutory policy in a leftward direction away from legislative intent. Were more influence by the current congress rather than enacting congress.
Issues with Griggs? How did it move so far to the lefT? Should judiciary track contemporary society rather than the statute itseld? This is one idea, ie that the original enacting legislature has an intention which the court helps effect rather than the letter of the law. Also, the court may align with the most important agencies, which in this case would be EEOC.
2. interpretations of the civil rights act in Weber
a. rule of law: reliability, predictability, etcetera
i. Text based
– plain meaning
– holistic: look at structure of statute, relationship of parts
ii. original intent
– specific intent
* median/pivotal voter
– “meta” intent: was there intent to delegate (to courts,
iii. Precedent: for example, with weber, Bakke, Griggs, etc.
b. political theory (blackmun’s concurrence)
i. Role of the court and relationship of the court to the legislature
ii. respect the deal struck in the legislature
iii. Critical of legislative process
iii. Implementation (how to effect general intent)
iv. Con law
United Steelworkers v Weber, 1979, page 88
Background of Weber was
1. disparate impact lawsuits
2. from McDonald, the idea that Title VII applies to whites as well
there was a tension between these two things
Brennan, writing for the majority, ends up relying on the spirit of the law, ie the intention rather than the dictionary definition.
– purposivism: general principals à initial concern in enacting title VII = plight of the blacks
– He looks at Legislative history but focuses on Senator Humphrey, one of the proponents of the bill, and makes his inquiry very narrow.
* he looks at Humphrey’s remarks that there was no point to end segregation if the root
sources were not removed.
* the point of this was basically to show that discriminate meant “invidious” discrimination (against blacks, not whites)
– Plain language: he points to the language of permit vs. require
* one ty
Title VII would justify an adoption of affirmative action.
– She was trying to harmonize Title VII & the Equal Protection Clause
Scalia in dissent
– believes that the decision expanded an already to poor decision to public employees
– says stare decisis shouldn’t apply (it is often applied less rigorously to civil rights laws, here it is a “canard”)
– he points to the plain text and says that the language of the statutes is unambiguous
– says that correctness of statutory construction is not based on what the current Congress desires but rather on what the law as enacted meant. (classic new textualist)
– he also seems to be invoking the whole statute rule
– Scalia also says that the system of checks and balances makes Congress less able to respond to the court than Brennan admits.
Regarding Title VII, there IS a dialogue between the Court and Congress. Look at Gilbert
B. Theories of representation page 123
1. descriptive: elected representatives should simply be mirrors of the larger group
2. agent: representative should do what their constituents want
a. under this model, elected representatives should actually be bound by what their constituents want
3. trustee: representative is the trustee of the public good, meaning that the public has imbued the representative with discretion to make decisions
4. Example: Pelosi and the Prop J issue
C. Theories of legislation page 47
1. the free rider problem (Mancur Olson): participation in politics is
costly and the rational person won’t participate in the political process (if they
don’t see that their efforts pay off) but WILL free ride on the efforts of others
a. interest group with a common interest that is adverse to the public good and/or other groups that presents a policy option
i. groups strengthen members
ii. interests of different groups “check” each other’s balance and
create dialogue (theoretically; in practice this is problematic)
iii. structural features check majoritarian groups
– as groups get bigger they are less cohesive (problematic)
i. Smaller groups more likely to organize and create change
because of free rider problem
ii. political parties, etc trying to support own ideas/agendas
3. public choice theory
a. economic model application to political decisionmaking that see s
actors as “rational utility-maximizers”
b. places legislation in to one of four quadrants based on cost/benefit analysis