Select Page

University of Dayton School of Law
Howarth, Cooley R.

I. Private v. Public Law
A. Private Law
1. Governs the rights and duties of individuals and the relationships between individuals.                       Judicial lawmaking which settles only the dispute in front of it. Previous rules help decide           future case under stare decisis.
B. Public Law
1. Defines and governs legal relations between citizens and their government. Regulates                        whole groups, deals with social problems, created by government bodies, oriented to         future conduct, and superior in legal authority to common law. 80-90% of all law is             public law.
II. How a bill becomes a law (page 29 in casebook)
A. The House of Representatives
1. Origination of the bill by:
a. Executive agency
b. Political Interest Group
c. Individual member
d. Bill drafting agency
1. Constitution specifies that all revenue bills must originate in the House.
2. Custom indicates that all appropriations bills originate in the House also.
2. Introduction of the bill by a member
3. Referral to standing committee by leadership
4. Committee action
a. Possible referral to subcommittee
b. Hearings customary on major bills
1. Open hearings for testimony
2. Closed hearings for deliberation, amendment, and decisions
c. Committee decision
1. Disregard the bill (pigeonhole)
2. Defeat the bill
3. Accept and report the bill out
4. Amend and report the bill out
5. Rewrite the bill  
5. Calendar the bill
6. Rules Committee (major bills)
a. Hearings
b. Closed rules
c. Open rules
7. Floor action
a. Committee of the whole
b. General debate
c. Second reading
d. Amendments
e. Report to the House
f. Third reading
g. Passage or defeat
B. The Senate
1. Bill is read for the first time
2. If no objection, the bill is read for a second time.
3. After the second reading, the bill is referred to a committee.
a. Unless a majority votes to put in directly on the Senate calendar
4. Committee consideration
a. Amended
b. Killed 🙁
5. If bill survives, it is placed on the Senate calendar.
6. The bill is called up for consideration.
7. Actual debate of the bill under the Senate’s unlimited debate rules
8. Third reading of the bill followed by a vote on the bill as amended by the committee                          and during floor debate.
III. Theories on government and public law making
A. James Madison
1. He saw that society was made up of interest groups (factions)
2. He feared that the factions would fight and that the good of the public would be lost.
3. He wanted to devise a way to make sure that law were created for the good of the                           public.   Congress would be the marketplace for ideas.
4. He also wanted to see that the majority did not trample the minority.
5. He created representative democracy.
a. Ability to filter special interests through a representative.
b. This way the dangers of majority rule would be lessened.
c. Representative could see what the public interest was by looking at the majority                                      and the factions too.
d. Through a representative democracy he thought that we could balance           

nce of competing interests attained between the groups.
3. The balance is important because it keeps society stable.
4. Role of the government
a. The pluralist does not see the role of the government as a filter.
b. The government’s role is to make sure that all factions are heard.
c. They see the government as an arena where the factions can fight it out.
d. Some interests are small and might not have been heard otherwise.
e. It is important that all interests are heard because it will lead to a balance of                                       competing interests.
5. Laws that come out of Congress
a.  They see the public law as the result of the battles between special interests.
b. Special interests determine the law and the decision is rubber stamped by the                                    congressmen.
6. View of the representative
a. The legislators should assess the strengths of the various factions and make a                                     rational choice between them so that all of the interests are balanced.
b. Legislators are agents or true representatives that make choices that are rational                                      and intentional.
c. By doing this, laws will always come out such that the public interest is fulfilled.