Judge Steve Leben
Legislation
Spring 2012
Leben’s slides are integrated into the outline. Canons/theories of interpretation short list (13pp) at end, which is all you need for his exam.
How to answer
1. Apply accurate legal standards – apply the funnel and examine all canons
2. Highlight ambiguities and tensions in:
a. The law
b. Methodology of statutory interpretation
3. Note policy implications of legal rule or interpretive approach
a. Who does this benefit/harm?
b. Do we want to benefit/harm this particular group?
c. Why or why not?
d. Is this based on a particular theory of legislation or representation? What are the assumptions of this theory?
i. Pluralist; Proceduralist; Institutionalist
ii. Descriptive; Agent/delegate ;Trustee
e. Conclusion which weighs and attempts to balance arguments
4. Make sure not to:
a. Fail to spot issues
b. Confuse substantive points
c. Be conclusory – fail to explain how legal standard or policy principle applied to the particular facts/statutes
d. Spot issues without developing a clear conclusion
e. Fail to consider reasonable alternative arguments
f. Write pro/cons of each major canon/rule/theory of interpretation
Themes
– interaction bet. courts and congress
– democracy notions
– how congressional intent gets distorted
– looking very closely at the statute’s language
– Descriptive: the actual state of things v. Normative: the desired state of things on a theoretical basis.
I. Theories of Legislation and Case Study of Title VII
A. Story of the Civil Rights Act
Civil rights act shows difficulty in passing major legislation. Legislation revolves around the major players who draft the bill, lobby for support, and control vetogates.
Players in the House
– JFK LBJ
– Manny Celler (D-NY), Chair, Judic. Cmte
– Bill McCulloch (R-OH), member judic, cmte
– Judge Howard Smith (D-VA), Chiar, Rules Cmte
Ø In the House, Rules committee sets the terms of the debate for each bill.
– Outside groups (civ. rts activists, labor, clergy, unions, women)
– Public
– Issues of who gets credit (RFK’s testimony).
– partisanship and coalition building
Senate players
– LBJ
– Democratic Whip H. Humphrey
– In order to avoid referring bill to cmte, majority vote is needed to bring right to floor
Ø Mike Mansfield (D-MT), majority leader – went this route to avoid bringing bill to judiciary cmte, which would have killed the bill
Ø meant organizing the troops and keeping them unified and in line.
– A filibuster stand-off just to get southerners to agree to vote on consideration.
– Appeal to public support to ready battle
– Main filibuster when bill is on Senate floor.
– swing votes = conservative republicans, and moderate western democrats
Ø didn’t care so much about civil rights, but those from smaller states were very protective of filibustering.
– cloture – The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster.
B. How Congress Works
CB 24-38
Players:
Legislators
Self-interest- Getting reelected, getting elected to higher office, prestige, fame, importance, money and influence current and future, rent seeking.
Strategic voting – compromise, logrolling, omnibus bills
Mostly motivated by constituent interests – Pork barrel politics, Committee appointments to enable rent-seeking
Executive (POTUS and agencies) – influence over agenda, veto, agency positions, party/campaign favors, money
Courts – interpretation
Interest Groups (lobbyists) – information, vote-getting, money
Interest groups and their lobbyists and members; diffuse or narrowly focussed
i. Grassroots
ii. Corporations
iii. Coalitions
iv. Voters with shared interests, like women, minorites, Christians
v. Manufacture of and Distribution of Information
vi. Provide lawmakers with funds and possibility of future jobs
b. Press
i. can be policy entrepreneurs,
ii. can generate interest in new issues,
iii. can affect reception of issues by voters.
c. Voters
1. Badly informed, manipulable
2. Single vote is of limited impact à equality concerns
3. Can convey their opinions of their representatives
4. Can mobilize through grassroots or initiative/referendum campaigns
Term limits, e.g.
• Flowchart: How a Federal Bill Becomes Law (on p25 of book)
HOUSE OF REPS
1) Drafting Bill
2) Introduction of bill by member
3) Referral to Standing Cmte
4) Cmte Action
5) Major Calenders
6) Rules Cmte
7) Floor Action
SENATE
1) Referred to standing cmte
2) Cmte action
3) Floor action (filibuster option)
CONFERENCE CMTE
SIGNED BY SPEAKER & VP
PRESENTMENT TO PRESIDENT
Theories about Committees.
· Distributive theory- cmtes. as the engine of rent-seeking, or the distribution of unjustified benefits to interest groups
· Informational role – cmtes provide specialized information to the rest of Congress on a specific subject (legislation/world is increasingly complex
· Tools of the majority party – Maj-party members exclude members of the other party from decision-making and cooperate among themselves to further the maj party’s collective goals
· Power of negation – most bills die in committees (but discharge petitions and rules allowing majorities to compel cmte chair to place bill on agenda)
Before Weber
C. Case Study: Title VII–Griggs v. Duke Power, CB 38-47
• Griggs (U.S. 1971)
– A facially neutral employment practice that was not demonstrably discriminatory in purpose is unlawful if it had the effect of excluding a group on the basis of race without a strict showing of necessity.
– Court stressed purpose: “Congress directed the thrust of the Act to the consequences of employment practices.”
– EEOC had argued for this position, saying that intent is hard to prove, so Title VII should be interpreted to bar employment practices that prove to have a demonstrable racial effect.
– Possible rationale: EEOC and the courts could see that pre-1964 discrimination still had a discriminatory impact, so a broad interpretation was needed to carry out statutory purpose.
Griggs, 4th Cir. (1970 p 42)- Title VII prohibits discrimination on the basis of race, sex, religion, or national origin.
Holding: There is no Title VII claim based on the disparate impact of an employment requirement of HS diploma for promotion application. If the system is facially neutral but has the effect of being discriminatory, without a showing of necessity, that will violate Title VII.
– Looks initially to agency (EEOC) decision
– Textual: relies heavily on 703(h)
– Legislative History: congressman discussing need for employers to be able to deny promotion hiring based on educ/intel qualifications despite disparate impact.
Dissent: see the amendment as trying to address the disparate impact issue in a much more limited way – tests can be used to determine qualifications, but qualifications need to be directly related to the job. If a test i
programs
> usually focus more att’n on the more specific provision
Holding (Brennan): Statute says no (he concedes this too quickly) but purpose/spirit of statute says this program is ok.
Purposivism – Interpreting the statute as enactors would. Purpose was to remedy African American access problem. This is how you do that.
Holy Trinity – backs up “hail mary” approach of looking to purpose of the statute even after you concede that the language goes the other way.
Legislative History (cmte report): “We will create an atmosphere that creates an environment supporting voluntary resolution” etc. Deals broadly with the purpose of the act—legislators say let’s give blacks better jobs.
Textual – Does Brennen concede to readily the textual argument?
Turns on the definition of “discrimination.” Discrimination can arguably involve some kind of animus, so the racial distinction here may not be discriminatory.
Ø But, discrimination may mean any form of differentiation.
Rehnquist (Dissent)
Ø Textual- meaning of “discriminate” is clear b/c its clear.
Ø Leg History: picks out floor statements of gatekeepers and important interpreters
Ø Legislator comments in favor of the bill stopped after 703j was added. (But no one reads the bills, so that doesn't necessarily mean anything). His view on 703j is that it was put in to ease race-balancing concerns of parties (fear of quotas, discrimination against whites). And he says it's consistent with 703a2.
Humphrey: “nothing in the court will allow the EEOC to enforce racial balance”
Ø Purposivism?: This is the kind of discrimination Title VII was made to avoid.
Blackmun (concurring)(Pragmatic/dynamic reading): Vol. aff action policies are permissible to respond to “arguable violations” of Title VII
Ø emphasizes that employers walk a high tightrope w/o a net since they don’t address past discrimination, they are subject to suit if they use aff. action they may also be subject to suit
Ø Pragmatic approach/focusing on ex ante behavior – see Posner
Ø Johnson: Where is this catch-22 coming from? From the court, not congress, b/c court created the standard in Griggs, which was arguably weakly tethered to the statute
–
– Other Textual interpretations of Title VII
703(a) is a broad prohibition against discrimination which precludes preferential employment programs based on race
but then 703(j) is superfluous – and there is a rule against super-fluidity
OR 703(a) is directed at invidious discrimination and preferential treatment programs are meant to remedy prejudice against blacks and are thus not invidious w/respect to whites
and then we have provisos of title vii which allow non-invidious discrim
Ø 703(j) by its own terms seems to allow for voluntary affirmative action programs.
would be the expression unius argument – but not one of our most reliable canons
there can be expression unius the other way – there is language protecting voluntary programs on Indian reservations
Johnson: By Weber, it’s clear the court uses its own reasoning instead of Congress’s, but also clear that the statute has significant gaps. To what degree are these gaps intentional and to what degree do they represent the limits of the leg process? Possible exam question?
