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University of Dayton School of Law
Crist, Maria Perez

Crist Legislation Fall 2013
I. Introduction: Overview of the Legislative Process
A. The Legislative Process
·         Only a member of the House or Senate can introduce a bill and there must be at least one sponsor.
·         Bill first sent to committee, decide to defeat, table, or approve (with/without amendments and refer to Committee of the Whole. Then sent to each chamber (House and Senate) for passage/defeat.
·         If one chamber approves the bill, an engrossed bill is sent to the other body where the process is repeated.
·         If both chambers approve the bill, then an enrolled bill is created. The enrolled bill is then presented to the president for signature or veto.
·         Full outline of how a bill becomes a law is on page 10 of the book
B. The Enrolled Bill Doctrine
·         On occasion, the legislature makes a mistake and identical bills are not passed
·         The Supreme Court has held that the “enrolled bill doctrine” precludes courts from questioning the validity of the enrolled bill or to impeach the attestation by other evidence
·         Onesimpleloan v. US Sec. of Education (2007)—p12—Plaintiffs claimed that the Deficit Reduction Act of 2005 was in violation of the Bicameralism and Presentment Clause. Furthermore, they alleged that the DRA never became a law because the House and Senate did not pass precisely the same text. The court stated that in light of the separation of powers concerns at the forefront of Marshall Field, which are surely undiminished by the passage of time, we do not think it plausible that the judicial branch must, before deciding if the enrolled bill rule applies, conduct threshold inquiries into how likely it was for a particular set of legislative and executive actors to conspire in alleged constitutional violations.
C. The Single Subject Rule
·         Rule requires that a bill address only one subject
·         Purpose of SSR include: encourage a deliberative and accountable government, curb the practice of hiding the significant part of a bill, reduce the ability of legislators to insert unpopular subjects in bills likely to pass, provide fair notice to legislators and the public as to bill’s subject
·         Lutz v. Foran (1993)—p25—Lutz owned a shrimp boat that sunk in the Savannah River. He raised the boat with buoys to salvage it, however Foran, a licensed harbor pilot hit and damaged the boat beyond repair. Lutz sued Foran for negligence in failing to control his boat and causing collision. According to Georgia Code there was an expert affidavit requirement that applies to any action for damages alleging professional malpractice. Lutz argued that the affidavit requirement should be struck down as unconstitutional because it is part of an act that contains more than one subject matter and a subject different from the matter expressed in the title. Court held that the provisions are logically related to the general subject of professional liability and therefore the act was constitutional.
II. Sources, Approaches, and Theories of Interpretation
A. The Sources for Statutory Interpretation
·         Sources fall into 3 categories: intrinsic, extrinsic, and policy based
1. Intrinsic Sources
·         Words of the statute—starting point of interpretation
·         Textual Canons
·         Components of the bill: titles, preambles, and section headings
2. Extrinsic Sources
·         Legislative history
·         Subsequent legislative inaction
·         Agency interpretations
3. Policy-Based Sources
·         Many are derived from the Constitution or from existing common law concepts
B. An Introduction to the Approaches to Statutory Interpretation
·         Three dominant approaches include: textualism, intentionalism, purposivism
·         Many judges blend the approaches
·         All agree that the text is the starting point
C. Exploring the Three Dominant Approaches to Statutory Interpretation
1.      Textualism—in which the interpreter follows the “plain meaning” of the statute’s text. They look at the text at issue, the language of other statutes—but not to legislative history unless they have a very strong reason to doubt the plain meaning of the text.
§  Textualism should be used for separation of powers reasons.  In particular, for more questions, those policy decisions should be made by individuals that are elected by the public, not by judges.  Using the text itself makes the law accessible to everyone, and places the public on notice, and thereby allows for greater clarity.  The purpose of the statute is not always clear, and so it can be contested.  Thus the judge interpreting the statute in light of an assumed purpose is troublesome.  Individual justice is often sacrificed in the effort for ideological purity.  Relevant information is overlooked, such as legislative history.  Plain meaning isn’t always clear and by just looking at the text still gives the opportunity to insert policy preferences, which they deny.  It won’t allow the law to evolve with the times in a common-law sense.  Congress can’t always legislate to fix all their mistakes.  This leads to archaic statutes & problems that are never fixed.
2.      Intentionalism—starts with the statutory language but also seek to discern meaning from the author’s intent. This approach does not require a reason like ambiguity or absurdity to consider sources beyond the text. Intentionalists attempt to discern intent by perusing all available sources, including legislative history.
§  Start with the statutory language first because that in itself is evidence of what Congress intended.  From there you can look at legislative history.  Committee reports and other clues can show intent.  Perhaps beginning with the Mischief Rule – what was the problem they were trying to address and what were the circumstances surrounding the passing of the law.  This won’t always be possible however, since Congress may not have anticipated the exact situation that’s before the court.  In that situation you can imaginatively reconstruct what the Congress would have intended had they known about this unique situation.  This is searching for more general intent of Congress.
§  One value of intentionalism is recognizing that Congress often screws things up and it is up to the courts to fix it.  The intentionalist approach can adapt itself to new situations that Congress may not have thought of or the law can flex to dea

ase and more broadly—is going to be more important to many judges than is adhering to rigid doctrine.
·         State v Courchesne (2003)—p54
·         State ex rel. Kalal (2004)—p60
III. Determining the Meaning of the Text: Words
A. Determining Ordinary Meaning
1.      The Plain Meaning Rule—one justification is that a court going with the plain meaning of a statute rather than amorphous intent is what gives notice of the law to lay persons.  They can look up the law, read it and understand it, and not have to go to other sources and the legislative history to figure out what it means.  The law should be clear and understandable to all.  Second rationale is that it’s the legislature’s job to make law and amend it if it doesn’t turn out to suit their intent.  The court should merely interpret what the legislature produces rather than change laws themselves.  It is better to let legislatures make the changes because judges aren’t equipped to do legislative work with the staffs that Congress has.  Also, that power is given to Congress, not to the judiciary.  Also, there’s a risk that the judge’s own prejudices and personal intent will creep into their decisions.  Also, most judges are appointed rather than elected, and elected officials are more responsive to the electorate and it’s more democratic that way.  (Federal judges are all appointed with life tenure.)  For example, in TVA if Congress wants to change the Endangered Species Act (ESA) then they should do it themselves.  The courts shouldn’t do it.  Part of the justification is constitutional, in that each branch’s roles are well-defined.  Another part is that it’s undemocratic for judges to make laws when they’re unaccountable to the people.  For the “plain meaning” judges the fact that Congress comes along and change their rulings is okay, reasonable, acceptable, and to be expected.  Congress did amend the law in response to TVA, but not to Griffin.  The reason not to overturn Griffin is that the Congress may have felt labor pressures not to change it.  The conflict between labor supporters and corporate supporters pushed Congress into inaction on the issue – there was too much possibility of a dispute to try to change it.  The claim that Congress can simply amend a law if they don’t like a result isn’t always true given political realities.
§  Smith v. United States (1993)—p74
§  Bailey v. United States (1995)—p76
§  Watson v. United States (2007)—p77
§  All three cases show an evolution of the court in interpreting the same statute
§  For ordinary meaning judges use a neutral source: dictionaries