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Legislative Process
West Virginia University School of Law
Titolo, Matthew

Matthew Titolo
The Legislative Process
Fall 2011
The Legislative Process Outline
Chapter 1
“The hard truth is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation. The most that can be hoped for is that it will have some foundation of experience and in the best practice of the wisest judges, and that it will be well calculated to serve the ultimate purposes of law”
v  The boundaries of most legal inquiry are structured by statutes and administrative regulations, not the common law
v  The legislative process is often a chaotic process of lobbying by interest groups and of assessments by legislators of the public interest and of their own, less public-regarding needs (such as reelection)
v  “Interpretation” is best understood not as literal application of dictionary definitions, but instead as attempting to unlock the message the speaker intended to send
v  There are many policy-based canons of interpretation that attempt to bring broader legal process values into the interpretive framework
Ø  Ex. Rule of lenity is a canon that instructs judges to read ambiguities in criminal statutes in favor of the defendant
Cumulative Method
v  Cumulative Method: Since there is no universally accepted method to interpreting statutes, practitioners can craft their arguments as cumulative rhetoric, taking the most convincing pieces of whatever approaches best fit their side of the case.  Cumulative argumentation has several advantages:
Ø  1.) The attorney covers all bases
§  …thereby incidentally including whatever approach the particular judge might favor as well as rebutting counter-arguments based on different approaches
Ø  2.) The attorney helps narrow the range of conflict in a case
§  Limits the abstraction of statutory interpretation by focusing on narrow, factual issues
Bressman – Chapter 1: Agencies in the Structure of Modern Federal Government
v  The regulatory state is the collection of federal government institutions and laws that determine many aspects of social economic policy
Ø  Administrative agencies are chief among these institutions
What is an Agency?
v  An agency is a unit of government created by statute. It owes its existence form, and power to legislation (though, technically, they can also be created by an executive order).  They were created to handle the massive increase in needed legislation as the country has expanded
v  Many agencies possess the power to act with the force of law
Ø  They do so by issuing rules, which are analogous to statutes, and by issuing orders, after conducting an adjudication that is similar to a judicial, trial-type hearing
v  Agencies have the power to do many other things, as well.  This includes: Issue binding rules, adjudicate cases, enforcement actions, coducting research studies, issue findings and guidelines for the public
v  Statutes frequently delegate to agencies the most significant decisions of social and economic policy
Where do Agencies Fit in the Constitutional Structure?
v  The Constitution is somewhat silent as to agencies. Thus, the Constitution imposes few requirements on the creation and operation of agencies (it is largely extra-constitutional, meaning that congress and the president have the power to create agencies)
v  Even though the Constitution does not directly address federal agencies, constitutional principles still govern agencies
Purpose of Agencies
v  Expertise: Agencies are often seen as possession institutional competence for solving complex problems that confront modern society because of their access to information, specialized knowledge, trained staff, time devoted to particular problems, and ability to create regulatory systems.  Sometimes there are concerns of legitimacy in agencies that don’t do their jobs well.
Ø  Ex. EPA develops professional, scientific expertise in environmental matters
v  Fairness and Rationality: Agencies are constrained by Due Process requirements and especially procedural requirements imposed by statute
Ø  The Administrative Procedure Act (APA) provides default procedures for agencies to use for making law and policy, as well as the standards that courts apply when reviewing such action.  In essence, the APA helps ensure that agency decisions comport with the rule of law.
§  The APA divides agency action into two basic categories: formal and informal
·         1.) Formal action = requires an agency to conduct a trial-type hearing, and can result in an order resolving a dispute between two parties
·         2.) Informal action = does not require agencies to hold trial-type hearings.  Includes notice and comment rulemaking (notice to public of proposed rule to be issued by agency with request for public comment).  The APA prescribes virtually no procedures for informal adjudication.
§  The APA also provides standards for judicial review of agency action
v  Interest Representation: Agencies are more open and accessible to hearing public interests.  However, we don’t want them to be too open (look up regulatory capture)
v  Political Accountability: Agencies are indirectly accountable to the people because the President supervises their decisions
v  Relative Immunity to Political Posturing: Agencies can sometimes implement policies that are preferred or needed when gridlock grips Congress
v  Coordination: Agencies are most effective when coordinating their policies with the policies of other agencies
What do Agencies Look Like?
v  Executive Branch and Independent Agencies
Ø  Two types of agencies: Executive Branch and Independent
§  1.) Executive Branch Agencies: Agency run by a single administrator who is removable by the president at will
§  2.) Independent Agencies: Agency run by a multi-member commission and board.  Members serve fixed and staggered terms.  Removable only for good cause. Their independence is thought to insulate them from the political process.  But they still are not entirely independent, because the president still has control over the appointment process and the structure of the two types of agencies are very similar
v  The Practical Significance of Agency Independence
Ø  The difference between types of agencies and particular agencies within those types is usually not that large.  The have a lot in common with each other.
Ø  Independent agencies are, however, less affected by shifts in democratic-republican power
Ø  Independent agencies have more authority to conduct their own litigation than executive-branch agencies do
Ø  The constitutionality of independent agencies is determined in Morrison v. Olson (look at powerpoint for day 2)
v  Organizational Charts
Ø  Shows the structure of agencies (p.19-21)
Chapter 2: The Common Law as a Regulatory Regime
v  Before the administrative state, the common law was the central regulatory scheme.  The common law is nothing more than the particular set of legally binding rules that are made and implemented by judges in the course of resolving formal disputes between contesting parties
v  This chapter examines the shift from the common law to statutes and regulations
The Limitations of Tort Law
v  Evolution of product liability
Ø  Winterbottom v. Wright stood for the proposition that manufacturers cannot be held liable to consumers or other users of their products if those consumers or users are not in contractual “privity” (i.e. a close, mutual, or successive relationship to the same right of property) with the manufacturer
Ø  MacPherson v. Buick Motor Co.: Expanded the classification of “inherently dangerous” products and thereby effectively eliminated the requirement of privity. The rule is that, if a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists.
Ø  Rotche v. Buick Motor Co.: though the common law (through MacPherson, here) worked to reduce the risk of auto accidents and corresponding harms, it only helped it so much and manufacturers found ways around it to avoid liability.  This case is illustrative of this concept, because plaintiff loses.
v  General Limitations of the Common Law
Ø  Retrospective vs. Prospective: When a court announces a new rule, it applies that rule to prior conduct – that is, the conduct of the parties in the case (which may result in an unfair penalty or windfall).  When a new rule is created by statute, however, it typically applies to conduct that occurs after enactment
Ø  Reactive v. Proactive: A court can only address an issue after a party suffers an injury and brings a case, so courts cannot reach out to actually prevent the injury from occurring.  Legislatures and agencies, however, can take action at any time.
Ø  Uncertainty: Courts don’t acknowledge they are changing the law by overruling past decisions, but rather recast those decisions in terms consistent with the present one (creating uncertainty as to what extent the law has actually changed).  Legislatures and agencies do not suffer from th

icient organization to produce their product efficiently without regulation
§  Moral Hazard
·         A situation wherein someone other than the buyer pays for the buyer’s purchase
¨       Ex. Rising medical costs.  The fact that purchases are paid for by others frees the individual from the need to consider that using more medical care means less production of other goods; in other words, he may “unnecessarily” or “excessively” use medical resources
§  Paternalism
·         The government supposedly knows better than individuals what they want or what is good for them.
§  Scarcity
·         Self-explanatory
v  Social Justifications for Regulation
Ø  Collective Desires and Aspirations
§  Political Choices May More Accurately Reflect these Desires than Consumption Choices
·         Citizens may see to fulfill individual and collective aspirations in political behavior, not in private consumption
·         People may, as political actors, attempt to satisfy altruistic or other-regarding desires which diverge from the self-interested preferences characteristic of markets
·         People may commit themselves to a course of action that they consider to be in the general interest
§  Takeaway
·         Statutes safeguard noncommodity values that an unregulated market protects inadequately
Ø  Social Subordination
§  Some statutes seek to eliminate or reduce the social subordination of various social groups
§  Market pressures to do the same are inadequate because:
·         1.) Third parties might impose serious costs on those who agree to deal with members of disadvantaged groups
¨       Ex. A redneck hunting store might accidentally turn away customers by hiring a black dude as a clerk
·         2.) Discriminatory behavior is sometimes a response to generalizations or stereotypes that provide an economically rational basis for market decisions
¨       Ex. “::Insert class of people:: are lazy, don’t hire them.”
·         3.) Private preferences of both beneficiaries and victims of discrimination tend to adapt to existing injustice
¨       Ex. The spit upon get used to and expect to be spit upon, and don’t strive for more
·         4.) Markets incorporate the practices and norms of the advantaged group
¨       Ex. Employment being structured for the able-bodied
Ø  Irreversibility, Future Generations, Animals, and Nature
§  Irreversibility: the fact that a certain course of conduct, if continued, will lead to an outcome from which current and future generations will not be able to recover from or only be able to do so at high cost
·         Ex. Protecting endangered species and the environment
Chapter 3: Legislation
A. The Legislative Process
v  Introduction
Ø  For a bill to become a law, the Constitution requires a majority vote of both houses of Congress (bicameralism) and a presidential signature (presentment), or a two-third majority vote of both houses of Congress to override a presidential veto
§  Note: One of the fears of the founders was that there wouldn’t be enough deliberation on laws.  So that’s why the process is so onerous
Ø  But most bills actually die before that.  Most of them die in committee.
v  The Standard Legislative Process
Ø  The modern legislative process gives a member who is interested in enacted a new law three basic procedural options:
§  1.) Representative can introduce bill and work to gain passage in both houses
§  2.) Representative can seek to have his ideas introduced into existing legislation that has already been drafted by a committee or other members
§  3.) Representative can “piggyback” amendment on existing or proposed legislation