Legislation and Regulation Outline

Main objective of course: To understand how courts interpret and apply law(mostly statutes and regulations) specified in non-case sources.

A focal point when studying should be: Distilling, analyzing, and critiquing the reasoning of individual cases to understand the law

Objectives of Course:

1. To familiarize yourself with these non-case sources of law2. Teach ourselves how these sources of law are created3. Teach ourselves various approaches to interpreting such sources of law4. Also to evaluate the propriety of applying these approaches in particular contextsBy end of semester I need to be able to:

1. Identify statutes and regulations and know how they apply relative to each other and to case law2. I should be able to evaluate whether these sources of law (especially administrative regulations) were created by proper procedures3. I must be able to interpret statutes and regulations, and when there is controversy about how these sources should be interpreted, to structure arguments about why one or another approach to interpretation and application is better than othersProducts and Tort Law

Regulatory State how does the government go about the business of telling people what they can or cannot do.

- The Market has some influence

Tort Law as Regulation

Regulation of private activity is pervasive in our society. The goal of such regulation is to allow societally beneficial activity while prohibiting or at least discouraging activities that create a net harm to society.

The legal system also recognizes that tort liability has the effect of deterring conduct for which a person may be held liable to another.

Points made by Professor:

Learned hand formula We want to maximize the benefits at the least cost (monetary value) we want an efficient level of care we give people benefits and incentives not to harm Tort law is acting like a regulator. Better than the government trying to figure out regulating means for each product.2 Things Tort Law Does

1. Takes care of some of the information costs. The manufacturers are in a better position to make products safer.2. Takes care of the externality problem. Ways in which Tort law can work to induce the cares that we wont (we still want it to be cost efficient)

Torts affecting laws through internalization

Negligence and Strict Liability

Administrative Costs

Insurance

The Market as a means of inducing spending on safety

The advantages of the market: The ability to cater to individual preferences.

The limits of the market: Four major factors impair the ability of the market to create optimal spending patterns; these are externalities; transaction costs; limited cognitive ability of participants; and the relationship of market choices to pre-existing patterns of wealth distribution

Externalities problem can be described as when two have a bilateral contract that affects a third party whose interests are not represented in the contract.

Transaction costs make it too expensive for people to internalize externalities.

Educating people and disseminating information is costly as well, in addition there still is a question of people acting rationally once learning of new information.

Final flaw is that the outcome of any market-based transaction depends heavily on the preexisting distribution of wealth

Tort Law as an aid to the market

Advantages of tort law:

Causes individuals and firms to internalize the costs of accidents, thus encouraging spending on safety Internalization of accident costs can enhance the operation of the safety market in two related ways:

1. By forcing individuals and firms to absorb the cost of accidents results in an incentive to reduce the accident rate, the consequences of the accidents, or both.2. By forcing the prices of goods and services to reflect all costs required to make them available including accident costs.Merck & Co. v. Garza

In this case the plaintiff needed to show causation, basically he needed to find support from the studies that supported that the decedent died from Vioxx. However decedents family could not do that.

General Causation- capable of causing harm to plaintiff in general population & other possible causes of harm are eliminated

Specific Causation- substance caused particular plaintiffs injury

Special causation might be used or a policy for it is the def. over paying

Causation can be a real problem for the regulatory effect

Class Action Suits:

Class Actions-

Pros is that the cost of litigation can be mitigated through a class action suit

Big companys want to win early so that they can create precedent so that other claims wont be brought, so they will spend lots of money. The answer to this is a class action suit. Class Actions give incentives to lawyers to invest if the see a big judgment.

Agent Orange Case

Court decides to spread the damages amongst the 1100 who were exposed to Agent Orange (they expected that 1000 people would have gotten cancer anyway).

Corrective Justice- even though people who werent specifically injured get damages however you make the company pay. However courts dont do this in general. If done however you would reduce the costs of torts as a regulatory system??

Theories of the Legislative Process

We can get regulation through legislation rather than just torts. Various committees would be able to regulate while fines and suits would be there to enforce. (however fines do not compensate). Administrative agencies and the legislature would be creating the statutes and codes.

When interpreting the statutes and codes the judges will look at the intent of the statute.

NEED INFORMATION ON PGS 1-5 IN LEGISLATION AND REG NOTES PLUS INFORMATION CONTAINED ON THE SUPPLEMENTAL READING PART

III. Statutory InterpretationA. Finding Textual MeaningThe Letter versus The Spirit of the Law

Statutory Text is known as the letter of the law and also known as the body of the law

The general background purpose of the statute is known as the spirit of the law also known as the soul of the law

Sir William Blackstones Commentaries offer five signs to interpret the will of the legislator, by exploring his intentions when the law was made (p.29):

Words Context Subject Matter Effects and Consequences where words bear either none, or a very absurd signification, if literally understood, we must deviate from the received sense of them. Puffendorf example that whoever drew blood in the streets should be punished with the utmost severity Spirit and Reason of the Law the cause which moved the legislator to enact itRiggs v. Palmer Case about the testator who got murder by beneficiary nephew.

Letter of the law would give Elmer the property but the spirit of the law would not allow Elmer to receive the property.

Hard to figure out the testators intent

We could fall back on a common law axiom

Arguments that common law should be used in interpretation of statute, however sometimes statutes are created to move away from the common law (Professor Dickerson).

Purpose behind rule is to cut down on arguments and make it easier to decide who gets what.

Interesting thing about Riggs and the purpose they give is just loosely tied to the purpose. Main thing is the policy behind deciding it that way.

The majority in Riggs concluded that despite the clarity of the statutory text, the legislatures intention ran counter to the expressed meaning of its chosen words in this situation

Professor Dworkin emphasizes the importance of coherence, explaining that, since a statute forms a part of a larger intellectual system, the law as a whole, it should be constructed so as to make that larger system coherent in principle.

This case suggest that when the letter of the law produces an absurd result or a result that would go against public policy than the interpretation of the statute would favor a result that society would consider just even if it might go against the letter of the law and even the main purpose. (Tiya)

Church of the Holy Trinity v. United States (Strong Purposivism Case) Case where the statute that made it unlawful to prepay the transportation or in any way assist migration of any alien into the United States, under contract to perform labor or service of any kind in the United States, its territories, or the District of Columbia

Holy Trinity has become the most important marker for the idea that when the letter of the law and spirit of the law conflict, the former must yield to the latter.They get around the language of the bill by looking at the committee and what the committee said

The court looks at the motives and history of the Act, the history and the circumstances that preceded the act where one in which capitalist were paying for foreigners to come in the country and work for low wages. The act was passed to prohibit foreigners that could not come on their on wages.

Court basically says that the Act was intended to keep pastors and intelligent people out.

Committee Report(s)- The case only cites the Senate report. Manual Labor not put in because the bill might have gotten passed. This is proof that some people did not agree with manual labor in the bill.

The Court looks at classic precedents- Puffendorf letting blood in the streets

Five ways in which the Court in Holy Trinity went about discerning the legislatures purpose.

a. the statutes titleb. the mischief - If the interpreter can identify the mischief the statute was trying to remedy, that fact will say a great deal about the purpose of the legislation.c. legislative historyd. societal values- In Holy Trinity there was a major religious value component in justificatione. other evidence of statutory purpose- Christian Nation- the ethos of the nation or the people. Government actors are no suppose to make their decisions based on being a Christian nation. The legislator should be the one deciding based on religion because they are voted by the people.

How do you know what the purpose was? Look at the debates. Another problem with purpose, ex. Clean Air Act. One problem with purposvism is how far do we go

Purposes dont tell us where to draw the line

Court does ignore the language of the Act

Intent is different from the purpose. Purpose is broader such as this purpose was to prevent competition in labor.

The summary a statute, language isnt perfect and sometimes the legislators misses things or expresses thing that suggest that the legislators is saying something that they didnt intend

Hart & Sacks- Legal Process

Here is the evil and we want to stop the evil, we want people to stop killing people, impoverished people excluding

Legislation isnt coherent, there are arguments, conflict???

Legislation process is messy, gender discrimination example

Argument for Hart & Sacks- the problem with the textualist approach, we know about vetogates,

The New Textualism

Textualist Judges most prominently Justice Antonin Scalia and Judge Frank Easterbrook challenged many of the key assumptions defining traditional purposivism.

Textualist promote that judges stay as close to the meaning of a clear statutory text even when the result contradicts the statutes apparent purpose, however derived.

Modern textualist emphasize that judges must respect the legislative compromise embedded in the statutory text.

Various approaches to statutory interpretation

Prof believes that there is a problem with every approach pros and cons to each

Purposovist approach- tries to find the purpose for which the provision was put in the statute. They will try to keep the statute coherent. As a reasonable person writing the statutes through reasonable means. Assumes legislator is like a reasonable person pursuing reasonable ends reasonably (ends tend to be those that further the public interest in some way). Has to be a reason like this is good for the country.

Extremeness was present in Holy Trinity case. Riggs was based on bad policy, based on a purposovist view that the testator would not want his stuff going to someone who killed them. In Holy TRinty that was purposovist because the purpose did not fit wit the language. Holy Trinity was an extreme version of purposovist because it was in clear contention with the text of the statute.

Under Riggs we would say that a statute is just so absurd and we wouldnt intend this.

Under Trinity today the court would think that the language is too clear.

New Textualism

What is the textualist approach and assumption? How does a textual interpret a statute?

Statutes embody ends and means which is another way of saying they draw lines that make tradeoffs between goals. Textualist looks at the meaning of the text, the best meaning taking into account context (how has legislator used this in the past), they are perfectly willing to look at the context (Macbeth ex.), context matters, the meaning at the time the statute was enacted, (Puffendorf ex.) any statute cannot be single purpose, Political battles, strategic behavior, compromises and even logrolling and vote trading (Vote trading are like trading one want or desire traded with another if the exchange things they can do, there is no middle ground you just trade. Under this you cant look at coherent ). Textualist say even if the purposivist were right Purposovist statutes that are more public interest in a sense.

Textualist if they can get the language than thats what is. The only way they stop it is by politicians calling them out on it.

Disadavantage to purpo is that you cant just ignore the langauge

But many textualist dont like absurd results, just so absurd, also some absurd results that would cause so many cases, even would dislike it

Once you have a purpose you still need to draw a line. Before there are countervailing things that suggest we gone to far. Purpose does not tell you where the line is intended to be drawn

If you change the baseline than the circumstances can change???

Penalty default rule by seidenfeld???

Intent is what is the particular meaning, Purpose is what is the general goal.

Purpose is what is the broad goal of this statute.

West Virginia University Hospitals, Inc. v. Casey Case where expert fees were asked to included with attorney fees.

Scalia (Scalia is a textualist)the majority opinion:

Court says it is not like the attorney fees inherently include expert witnesses

Scalia Courts response in support it decision: One thing they say is that we dont give credence because that is not what has passed

Second thing is that things that legislator did not intend may slip through

This language is what was passed and got through the house and senate

Scalia says that 1988 would not have overturned Alyeska is an irrelevant precedent

Dissent Stephens (Purposivist View):

Dissent: Civil Rights cases sometimes allow expert fees so they can bring cases and win them basically equalize the playing field

The other purpose of the Act was to undo Alyeska case then this would indicate that they intend to.

Stephens suggested that we do society a disservice when judges dont apply the purpose interpretation and instead just apply textual interpretation. Consequently Congress will have to take the time and revisit the matter and restate its purpose in more precise language.

While purposivist see a mismatch between a statutes text and apparent purpose, textualist are more likely to see such a mismatch as the consequence of the inevitable conflit, bargaining, and compromise of hundreds of elected officials and countless constituents.

Textualist believe that...

That is is tough for a judge to discern a statues purpose Textualists emphasize that statutes embody choices about both ends and means. The means adopted give interpreters important information about the price the legislature was willing to pay to achieve its ends. Scalia in Casey the purpose of a statute includes not only what it sets out to change, but also what it resolves to leave alone and that the best evidence of that purpose is the statutory text adopted by both Houses of Congress and submitted to Congress the point of interpretation is to respect the supremacy of the enacting legislature, not te current legislature. textualism operates as a penalty default rule that improves the legislative process:..the idea is that Congresss reliance on text is more likely to provoke Congress to clarify an ambiguous or imprecise statute, and this effect may enhance, rather than detract from, the legitimacy of the interpretive practice. (Purposivists usually counter and argue that these arguments fail to account for the complexities and difficulties of the legislative process textualist would say that there will be inconsistencies in interpretation that federal judges and justices would simply never be able to establish a coherent approach to interpretationPurposivist believe that...

Judicial Correction of Legislative Mistakes

a. The Absurdity DoctrineAn old and well established principle of statutory interpretation is that statutes should not be construed to create absurd results (Blackstones fundamental principles of statutory interpretation)

Most textualists and purposivism find common ground when considering an interpretation that would produce an absurd result

United States v. Kirby (Justice Field)

Supreme Court of the United States 1868

Facts: The defendants were indicted for knowingly and wilfully obstructing and retarding the passage of mail and of a mail carrier when def. (officers) arrested the mail man for committing murder

Court:

Talks about the statute itself only applies to those who knowing and wilfully obstruct or retard the passage of the mail. That the statute has no reference to acts lawful in themselves, from the execution of which temporary delay to mails unavoidably follows. General terms should be so limited in their application as not to lead to injustice, oppression, or absurd consequence.p. 87 Court chooses to use common sense. Uses Puffendorf example whoever drew blood in the streets should be punished. Kirby states an absurdity is something that contradicts common sense, understood as societys widely and deeply held values.The Rationale for the absurdity doctrine:

Court views doctrine as a method for discerning legislative intent On the assumption that legislators represent their constituents a statutory interpretation that offends widely and deeply held social values represent failure of foresight of Congress which they would have never intendedTextualist critique purposivism because statutes embody legislative compromises, and so a statute may not have a single and coherent purpose.

Most modern textualists would accept Kirby but not Holy Trinity, on the basis of judicial ursurpation.

Public Citizen v. United States Department of Justice (Justice Brennan)

Supreme Court of the United States, 1989

Facts/Suit:

President used ABA to help advise him on making judiciary nominations FACA was born to access the needs of numerous committees, boards, etc. Purpose was to minimize committees and only establish them when they would be essential. Part of FACA was being able to have management controls over these advisory committees WLF (Washington Legal Foundation) brought suit against the ABA after ABA refused to WLF request for the names of potential judicial nominees, WLF asked the District of Colombia to consider ABA an advisory committee under FACA and sought injunctive relief for the Justice Department to cease utilizing the ABA committee as an advisory committee until it complied with FACACourt:

Under the FACA statutes language it defined advisory committee among other things as any committee which is established or UTILIZED by the President.Court focused on the word utilized and concluded that if the ABA was utilized by the President than it would be under FACA regulations.

Court construed the word utilize as being undefined by the statute. That the plain reading of utilize would produce results that the Court found absurd like NAACP and Political Party consultations could be reviewable (Dissent disagrees that this are absurd results). Court looks to the purpose of FACA which was to eliminate wasteful spending, Court thinks that FACA was not intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering services.

Court: Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congresss intention, since the plain meaning rule is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.

Court decides to go against a literal meaning of utilize because it would go against what they believe that Congress intended.

Justice Kennedy Concurrence:

Believes that FACA does cover ABA activities Agrees with judgment but believes Court could have gotten to the same outcome by a different analysis. Disagrees with Court rejecting the literal meaning of utilize. Believes that ABA would fall under FACA under the utilize description but would be found unconstitutional. Believes that reluctance to working with the basic meaning of words in a normal manner undermines the legal process. Believes that where the language of the statute is clear than Court should be bound to it. However where the plain language would lead to patently absurd consequences than language should not be applied. Does not embrace the principle of Holy Trinity which says that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. Believes that when a statute is clear and where it would not be patently abusrd to apply the statute to such conduct, it does not foster a democratic exegesis for this Court to rummage through unauthoritative materials consult to the spirit of the legislation in order to discover an alternative interpretation of the statute with which the Court is more comfortable.1. Is Absurdity in the Eye of the Beholder (text book)- Justice Kennedy (concurrence) argued that the Court should limit the exception (absurdity doctrine) to situations where the result of applying the plain language would be, in a genuine sense absurd, where it is quite impossible that Congress could have intended the result, and where the alleged absurdity is so clear as to be obvious to most anyone.

2. Absurdity and the Level of Generality Problem In Public Citizen Justice Brennan did not focus on the alleged absurdity of the particular application of FACA at issue. Rather the court focused on the word utilize and that its conventional meaning would imply other results that are absurd. Justice Brennan opinion was that the identification of absurd applications that are not before the court CANNOT empower the court to conclude, more generally, that the language of the statute cannot be read in its ordinary sense, thereby opening the door for consideration of extra-textual indicia of intent or purpose? Argument for majority view Then again perhaps the Court was getting at the following argument: If a straightforward reading of a statutory term would lead to a range of absurd results, this may be prima facie evidence that the term itself must have a narrower then it would first appear. New Textualist view that statutes are a result of the bargaining process and we must take them as they are Modern textualists have emphasized the fact that introducing clarifying amendments to address absurdities may open a Pandoras box, that ultimately scuttles proposed legislation-but does alter the reality that inherent imperfections in the legislative process sometimes lead to absurd results that no rational legislature would have endorsedCongressional Response to the Absurdity doctrine

One argument against the absurdity doctrine is that there is a risk of false positives in which the court finds an absurdity when there is none, are far greater than false negatives failing to prohibit an absurd application. Another argument is to just not rescue Congress and let them internalize their bad statute and be more careful as well as change the bad statuteOther techniques for avoiding absurdity

In defending the absurdity doctrine courts refer to Plowdens discussion of the prisoner who breaks a rule of escape and escapes when the prison is burning down Puffendorf surgeon drawing the bloodWhat is the text?

The Supreme Court has repeatedly held that the starting point for interpreting a statute is the language of the statute itself. We have to acknowledge that we can discern what a word means by the context because we are a community, however there are various communities that have their specific jargon like lawyers, doctors, etc. Accordingly what is apparent to some might not be apparent to all.Moskal v. United States (Justice Marshall)

Supreme Court of the United States (1900)

Facts:

Moskal changed the mileage on used cars and sent them to Virginia. Virginia authorities unaware of the alterations issued Virginia titles incorporating the false mileage figures. Moskal indicted under statute 2314 which basically made it a crime to falsely made securities through interstate Moskal argued that the titles themselves were genuine that they were made unknown of the altered mileage and thus was not falsely madeIssue on analysis: Whether a valid title that contains fraudulently tendered odometer readings may be a falsely made security for purposes of 2314 presents a conventional issue of statutory construction, and we must therefore determine whats cope Congress intended 2314 to have...

Court supports it reasoning that falsely made includes Moskals behavior because:

Court believed that Congress had the purpose of enacting 2314 in order to come to aid the states in detecting criminals who try to escape detection by channels of interstate commerce Finds that the plain meaning of falsely made and the legislative purpose give reason to believe that the statute applies to a fraudulent scheme for washing vehicle titles.Dissent Scalia:

Believed that falsely made ordinary meaning that was used by majority was wrong. That falsely made would reasonably be someone who knew they were making a false document. Accuses court of wordplayNotes from text

1. Ordinary Meaning, Legal Meaning, and Legislative IntentJustice Marshall uses an ordinary meaning of the phrase falsely made, that the inclusion of a false odometer reading would render and automobile title falsely made.

Justice Scalia uses a more technical meaning of the phrase falsely made which is more to forged and applies to an inauthentic document rather than an authentic document that contains false information.

2. The Relevant Audience and the Rule of Lenity Justice Frankfurters statement that the choice between ordinary and technical meaning depends upon the identity of the audience to whom the statutory provision is directed. However there are various audiences some statutes are tailored to lawyers and some more tailored to none lawyers.COLLOQUIAL MEANING (ordinary meaning) OR DICTIONARY MEANING?

Smith v. United States (Justice OConnor)

Supreme Court of the United States (1993)

Facts:

Smith was convicted of violating 18 U.S.C. 924(c)(1) which it made a crime worth more time when the use of a firearm during and in relation to a drug trafficking crime. Smith argued that he was not using the firearm but was just bartering the gun for cocaine.Courts:

Court decided that Smith behaviors fell within the statute because the gun was used in relation to a drug trafficking crime.Dissent: Scalia, Stevens, Souter

Basically thought that use of a firearm taken at is literal meaning constituted shooting it or pointing at someone.Notes from text

1. The use and abuse of dictionaries The courts use of dictionaries although increasing is controversial. One point against it is that by focusing on dictionary definitions will miss or under value the policy impulses that inspired the legislation. (Judge learned hand held this view) Judge Easterbrook supported has observed that the dictionary is merely a museum of words, an historical catalog rather than a means to decode the work of legislatures. HOWEVER, the Supreme Courts most dedicated purposivists have no difficulty consulting dictionaries as a useful starting point for identifying the purposes Congress sought to achieve through its chosen words.2. Disagreement and Clear Meaning- Textualism presupposes that interpreters can discern and agree upon the clear import of a statutory text.3. Earlier Examples Revisited The dispute in Smith shows that reasonable people (and Justices) can disagree about the ordinary meaning of language, and that the assertions about statutory clarity are often more problematic than they appearNorth Haven Board of Education v. Bell

Supreme Court of the United States (1982)

(Justice Blackmun)

Issue: Does Title IX reach the employment practice of educational institutions?

Holding: Relying on legislative hearings the court concluded that it did.

Notes from Book:

The Courts decision in Bell relied on a variety of different forms of legislative history. Some parts of legislative history that Courts use...

Get info on four topics from pages 152-162!!!

1. Committee Reports- conventional wisdom has said that this is the most reliable form of legislative history2. Statements of Individual Legislators- problem here is that one persons view might not have reflected the majority of views3. Successive versions of a statute4. Subsequent Legislative Action-Blanchard v. Bergeron (Attorney fee case)

Supreme Court of the United States

1989

Justice White

Facts/Procedure:

Blanchard received 10k as damages in their claim against a sheriffs deputy in violation of 42 U.S.C. 1983 which it was found that he was deprived of his civil rights District Court awarded $7,500 in attorney fees under 42 U.S.C. 1988, The COA REDUCED award to $4,000 in attorney fees, ruling that petitioners 40% contingent-fee arrangement with his lawyer served as a cap on feesIssue: In absence of a specific definition of reasonable attorneys fees under section 1988, should attorneys fees be limited to to the amount provided in a contingent-fee agreement?

Court:

Looks at legislative history Looks at Johnson v. Georgia Highway because the legislature (both houses) referred to Johnsons 12 factors for assessing the reasonableness of an attorneys fee award Court finds that Johnson talked about that litigant should not get greater than was contracted with attorney (what lower court used which was dicta), HOWEVER court says that Congress pointed to the three district court cases (holdings) in which the factors were correctly applied. Those cases clarify that the fee arrangement is but a single factor and not determinative. Court finds upon analyzing cases which used Johnson factors that contingent-fee factor was just one factor and was not dispositive and could not serve as a ceiling on an award of attorneys fees.Justice Scalia Concurrence:

Agrees except for the part that rests on detailed analysis of Johnson and Johnson cases Says that Senate referred to district cases, and the House referred to Johnson Doesnt believe that Congress spent much time pouring over the Johnson cases at all, so when the majority talks about Congress looking at the cases, he is skeptical Doubts the weight of the cases cited in the legislative historyContinental Can Company, Inc. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union Court here is interpreting the meaning of substantially all in a statute that involved pension fund assets.US Court of Appeals

Judge Easterbrook

Issue: What does substantially all mean in 1383?

Court:

Looks to the legislative history Takes into account Representative Thompson statements which were made before the bill became law, that substantially all means 85% as commonly understood by the IRS Court also looks at Senator Durenbergers statements which were that Thompson was not there when the amendment orginated and did not participate in writing it, and that substantially all means 50.1 % Court looks at the fact that the statements made by Thompson were before the bill was enacted and that Durenbergers statements were made after senate adopted 4203 and the second statement came two months after the bill was enacted Courts main basis for finding that substantially all mean 85% was the fact that Thompsons view of 85% was accepted by Congress and the President, as well as the common legal meaning of substantially all as being 85% (tax statutes, IRS, and regulations they could find though substantially all was 85%)Notes from Book:

1. The Formalist Argument: Legislative History is not law Textualist reject looking at the legislative history intent because they feel that the text is the law and not the subjective intentions of individual legislators. Scalia believes that the greatest defect of legislative history is its illegitimacy, that legislative history unlike a statute has not gone through the constitutionality mandatory processes of a bicameral passage by the House and Senates and a presentment to the President for approval or veto Easterbrook argues that opinions of legislatures are not the law, so why should we make them the law? opinion poll among members of Congress shall have the effect of law p.170 Justice Breyer a critic of textualist says that legislative history is useful in trying to understand the meaning of the words that do make up the statute or the law.2. Does Judicial Use of Legislative History Facilitate Circumvention of Article 1? Textualists argue that legislative history is filled with deliberate attempts to circumvent the Article I, 7 process That legislative history is filled with private-interest goals that the groups would not be able to persuade the entire Congress to endorse Delegation theory is that legislators who know of only a general purpose of a piece of legislation, rely on details from members who actually sat on committees, and adopt these committee wills as their own. Scalia does not like this because he considers the powers assumed by Congress under Article 1 of the constitution are nondelegable. 3. Is Collective Legislative Intent a Coherent Concept? Another argument new textualists make is that subjective legislative intent is simply an incoherent concept because legislatures, as collective bodies, do not have an intent. Basically no ONE MAIN INTENT, diverse intents. Thus trying to figure out what the legislature intended is hopeless and misleading. Social choice theory, which studies how individual preferences are aggregated into collective decisions. Easterbrook points out that even if a committee and a sponsor indicates a given preference on an issue, one cannot reason from that evidence to the outcome that the legislature would have reached collectively Response to Easterbrooks position: Professors Farber and Frickey p. 175 suggest that because of the impossibility to have a collective coherent choice under pure majority rule this actually strengthens the need to look at the legislative history, so that you can understand the filtering procedures that Congress has put in place to aggregate its preferences into a meaningful collective decision Another response: Professors McCubbins, Noll, and Weingast p. 175 that legislative committees, sponsors, and floor managers have incentives such as keeping a good reputation to be truthful and forthright4. The Probative Value of Legislative History Textualists suggest that committee members are likely to be preference outliers, with views that diverge quite substantially from the chamber. Why might this be? First, as some political scientists suggest, Members of Congress self-select onto committees where they (or their constituents) have particularly intense policy interests.5. Does Legislative History Expand Judicial Discretion One worry by textualist is judge activism which is a concern about judges going beyond the legitimate exercise of judicial discretion, using an overly loose and undisciplined form of interpretation to implement their own views of sound public policy and the expense of the legislative and executive branches. Critics of the above statement say that judges would be more confined to the purpose and public policy of the legislature. They argue that legislative history may on balanc, constrain rather than liberate judges6. Legislative History and Congressional Expectations Professors Eskridge and Ferejohn make the point that legislator assumptions involve their understanding of how courts and agencies will go about interpreting statutes. This premise is reflected with knowledge of our basic rules of statutory construction.7. Legislative History and Judicial Decision Costs Professor Vermule lower-level institutional analysis in which he concludes that it is simply impossible tell whether judicial reliance on legislative history averts more error than it causes, or vice versa, that in the face of such uncertainty judges should eschew legislative history for the simple reason that the costs of legislative-research is high.The New Synthesis

Scalia has had a major impact on the Supreme Court and their use of legislative history and how much weight they put on legislative history. One factor is that textualist justices like Scalia and Thomas are strong on not supporting an opinion that has used legislative history, which can have a powerful effect on a closely divided court. On the other side Justice Stevens nor other justices decline to join an opinion if it fails to be grounded in an interpretation based on the legislative history Courts in general now are relying less on legislative historyProfessor William Eskeridge a critic of textualism says that three positive developments might emerge from textualists efforts and thus improve the practice of using legislative history:

1. Textualists remind courts and attorneys that they must first analyze the text of a statute first before going to legislative history2. The textualist might encourage reliance solely on the text when it is clear3. Also textualist will encourage courts to make sure that the legislative history is reliableExxon Mobil v. Allapattah Services

Supreme Court of the United States

2005

Justice Kennedy

Background: The origins of 1367 Supplemental jurisdiction came about after Finley v. United States a federal-question jurisdiction case in which the P. wanted to bring in state claims against other defendants that arose out of the same underlying dispute but could not qualify on its on. The Supreme Court held that the Federal courts could not exercise supplemental jurisdiction. Subsequently 1367 was developed in which people thought it overturned Finley.

The question was did 1367 overturn Zahn which involved a diversity action which basically said that a federal court could not have supplemental claims over the claims with a value below 75k?Def. and dissent: Want to look to other tools beside the text and structure of statute, basically wanted to look at the legislative history, which they believed showed that Congress did not intend 1367 to overrule Zahn

Rely on the House Judiciary Committee Report on the Judicial Improvement Act which said that 1367 would authorize jurisdiction in a case like Finley, and they also remarked that 1367(b) is not intended to affect the jurisdictional requirements of 1332 cited Zahn and Ben-HurCourt decides to go with a text interpretation because:

1367 is not ambiguous they think the legislative history is not the best interpretation of 1367 What text says is the authority not the legislative history Legislative history and extrinsic materials serve a purpose when the text is ambiguous.Two criticisms that the court uses to refute the def. and dissenters arguments about the use of the legislative history:

1. Legislative History is often murky, ambiguous, and contradictory. Court quotes Judge Leventhals memorable phrase looking over a crowd and picking out your friends. p. 186 Although the Federal Courts Study Committee did not expressly adopt the Subcommittees specfic reference to Zahn, it neither explicitly disagreed with the Subcommittees conclusion that this was the best reading of the proposed text nor substantially modified the proposal to avoid this result. Basically House Report and Subcommittee working paper were contradictory.2. Judicial relaince on legislative history make give unrepresentative committee members- or worse yet, unelected staffers and lobbyists- both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text. Court says that there has been an acknowledgment by parties that have specific knowledge of the statute and the drafting process, that the the plain text of 1367 overruled Zahn and that the House Report was a post hoc attempt to alter that result Court does not give much weight to the House Report, but put some weight in the Subcommittee Working paper because the three jurist and three participants in drafting 1367 agree that on its face 1367 overrules Zahn Court considers the claim that if Congress intended 1367 to overrule Zahn which is the what the court s suggesting then there would have been more controversy than there was. The court responds to this claim that they dont think Congress would have been upset about this result, because any competent legislative aide would have flagged the issue if they thought it of importance to their boss.Dissent of Stevens, Breyer:

Disagrees that there was manipulation That Congress clearly did not want to overrule Zahn by the language Refers to the fact that there was contradictory evidence only highlights that the statute was ambiguousNotes from textbook

1. Legislative History and Statutory Ambiguity- Modern Doctrinal Line on the use of legislative history is that legislative history is ok to use when the statute is ambiguous. (Justice Kennedy in Exxon Mobil). On this view, although legislative history may be used to resolve statutory ambiguity, it may not be used to create statutory ambiguity or to overcome the clear semantic meaning of the text. Problem with modern doctrinal line on the use of legislative history is that even if justices dont find a statute ambiguous they all might interpret it to mean different things2. Close scrutiny of the particular legislative history- 3. Distinguishing Types of legislative history- GET NOTES P. 191-193 Court treated House Report as on par with the committee reportOther potential uses of legislative history

Corning Glass Works v. Brennan

Supreme Court of the United States, 1974

Justice Marshall

Background: The 1938 Fair Labor Standards Act added the principle of equal pay for equal work regardless of sex when the Equal Pay Act of 1963 was added

Issue: Whether Corning Glass Works violated the Act by paying a higher base wage to male night shift inspectors than it paid to female inspectors performing the same tasks on the day shift, where the higher was was paid in addition to a separate night shift differential paid to all employees for night work?

Facts:

Corning began to use automatic production equipment and thus wanted to operate in the night as well Women were not allowed to work at night under New York and Pennsylvania law In order to fill the spots they hired male employees, some from day shift to work at night Male employees requested higher wages and receive them Thus men were made much higher than women who were doing the same work during the day Sometime after Act Corning allowed women to work night shifts (which law amended to allow women work at night) 1969 Corning established the same base wage, whatever their sex or shift HOWEVER A PROVISION in agreement served essentially to perpetuate the differential in base wages between day and night inspectorsCourt:

Congresses purpose in enacting the Equal Pay Act was to remedy a serious and endemic problem of employment discrimination in private industry Congress intended equal work to be paid by equal wages Court said that the secretary needed to show that an employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are preformed under similar working conditions.Corning argues that the Secretary has failed to prove that Corning ever violated the Act because the day and night shifts are different working conditions.

Court says that Congress acknowledged that job evaluations needed to be outside the purview of the bill Court says that working conditions according to Congress contains two elements: surroundings and hazards, and both of the night shift and day shift contain the same thingsNotes from textbook

1. Distinguishing Uses of Legislative History Judge Easterbrook (a textualist) brings about the difference between using legislative history as an authoritative source of legislative intent and relying on it as a source for evidence for facts about the world. Easterbrook suggests that to decode words that you must reconstruct the legal and political culture of the drafters. That the process is objective and that the search is not for whats in the authors head but for the rules of language they used. Easterbrook says that looking to the legislative history for the surroundings of a word are different than using the legislative history for the intent of the legislator. Easterbrook says that legislative history may show that words with a denotation clear to an outsider are terms of art, with an equally clear but different meaning to an insider. Easterbrook is worried about manipulation of the legislative history by the court in just choosing what they want to use, also worried about savvy legislators describing terms in favorable ways in the legislative history in order to manipulate the court, thus he warns that we must be careful and verify the representations made in the material, rather than taking them at face value or giving them additional weight because of their congressional source.2 Narrow contexts in which textualists have relied on legislative history:

1. Scalia in United States v. Fausto used legislative history to prove a courts conclusion, or as some sort of authority to cite that was used to back decision.2. Scalia also said in Green v. Bock that he wanted to use legislative history to help determine the existence of absurdity, that Congress could not have meant it and that Congress overlooked its application in someway, and that if someone in the legislative process had mentioned the application then the Court might find it difficult to conclude that the absurd result was overlooked. (Counter-argument here is that Scalia always argues that legislators dont read legislative history)2. Specialized Meanings and the Problem of Multiple Audiences, Redux Sometimes technical terms might be understood by some of the predominant audience of a statute but not all- Corning Glass3. Changes in Specialized Meaning over Time- What if a term of a statute begins to mean something else over time? One possibility that many courts would probably endorse is that the change of the industry usage does not matter for the purposes of the Act (equal payment act in this particular situation), because the relevant interpretive question is what the statute was intended or understood to mean at the time of enactment. Another argument could be that by incorporating a broad term (In this case working conditions Corning Glass) that congress meant to incorporate by reference whatever meaning that term had in the relevant community at the time of enforcement? p, 201 The Judicial Power and Equitable Interpretation

Justice Stone takes the non to prevalent view that judges should treat a statute like we treat a precedent, as a declaration and a source of law, and as a premise for legal reasoning. Case United States v. Marshall, provides an opportunity to see how different concepts of the judicial role affect approaches to statutory interpretation.United States v. Marshall

U.S. Court of Appeals for the 7th circuit

1991

Judge Easterbrook

Facts:

4 people convicted of drug charges. (LSD) Marshall convicted of distributing 10 grams which was a 20 year prison sentence. Brumm, Chapman, and Schoenecker convicted of selling ten sheets of paper containing LSD which was 5.7 grams, a five year mandatory minimum applied (various sentences p. 204)Issue: Whether the statute excluded the weight of a carrier medium?

More Facts:

Pure LSD is dissolved in a solvent and sprayed on paper or gelatin or paper and after the solvent evaporates its cut into squares either on the paper or the gelatin and gelatin and paper weigh much more than the drug itself. Marshalls (one of the defs with the most possession) doses weighed 113.2 grams; the LSD amounted to 670mg, not enough to activate the 5 year mandatory sentence, let alone the 10 year minimum. The other defendants possession did not even make the one-gram threshold for a mandatory sentenceCourt:

Says that various weights of carriers would determine sentences rather than the amount of LSD. Court says that the drugs are not sold pure but have fillers Court looks at the fact that Sentencing Commission says that they consider LSD to be sold in a dilute form and thus far less than the 100% ingredient Court looks at the language of the statute detectable amount meaning the opposite of pure and mixture as not being pure. Court says that mixture could not include all carriers Court eliminates LSD being considered a substance because the LSD does not react chemically with the gelatin or the blotter paper BUT court does find that LSD is a mixture because tiny crystals of LSD mix with the paper Court relies on other courts finding LSD to be a mixture with its carrier (United States v. Rose)Court addresses Dissent:

Irrational results are not happening (like some going to jail for life because they dropped some LSD in a 2liter coke bottle) Says that Congress had consulted DEA agents to help with sentencing3 rational basis that the Court thinks Congress had for making the penalties depend on gross rather than net weight:

1. Carrier medium is the tool of the trade of selling drugs thus it is reasonable to incorporate the tool of distribution in the penalties2. In 99% of the cases LSD is sold on a blotted paper (Tiya, thus all of the cases should be applied pretty much the same)3. Weighing the actual weight of the LSD minus the carrier would be a difficult processDissent by Judge Posner:

Addresses the content of the drug in each dose Various carriers various weights Weight of the carrier greater than LSD, as well as irrelevant to its potency Disparity in sentences Feels that Congresss only worry is the cost of weighing the LSD minus its carrier Says that there will be different sentences when there shouldnt be based on what carrier was used that could discriminately affect sentencingDissent talks about 2 judicial views that are at odds:

1. Positivistic view (affirms harsh sentences in this case): The what the legislatures produce is clear, explicit, and definite enactments2. Natural view (freer interpretation, one influenced by norms of equal treatment): The the practice of interpretation authorizes judges to enrich positive law with the moral values and practical concerns of civilized societyNotes from class

How prof wants you to answer questions. No need to look at the dictionary. But first you need to phrase the issue and then organize it so that you do get points. How do we go about the accepted methods of interpreting the statute 1. Start off with talking about the issue 2. Then,Description of the law (includes interpretive methods)(include textualism, purposivism, intentionalism with three sentences on how they work) 3. then, an analysis of the law of the various approaches to interpretation which is best in this case (then you give all the pros and cons for your argument and against the other forms of interpretation) 4. Application: applying the best approach or rule, how does the case come out. Apply the best approach. Then you have to say that even if I got wrong and a judge would apply something else then you talk about the other two and then you try to eliminate??? 5. Is the conclusionThere is a sub issue of what is a practice or procedure with respect of voting you need to address and the issues and potential subissues are.

GET NOTES PGS 212-217 AND 222-25!!! Canon info

CANONS there are two types of canons semantic and substantive

A. The Expressio Unius Canon- the principle that when a statutory provision explicitly expresses or includes particular things, other things are implicitly excluded

B. The Noscitur A Sociis Cannon, The Presumption Favoring Consistent Meanng, and the Presumption against surplus languageGet notes pgs 233-34

Gustafson v. Alloyd Company, Inc. GET NOTES OF CASE PGS 234-49!!!

Supreme Court of the United States, 1995

Justice Kennedy

Background: 12(2) of the Securities Act of 1933 gives buyers a cause of action against an undoing of the contract against those who made false statements or or omissions by means of a prospectus

Issue: Whether the contract between Alloyd and Gustafson was a prospectus as the term is used in the 1933 Act.?

Facts: Gustafson sole shareholder of Alloyd agrees to sell the stock to Wind Point for 18million, and an extra 2 million which was the estimated increase in Alloyds net worth from the previous year. However estimates were actual lower than the 2 million. Wind point brought action of rescission pursuant to Securities Act because of misstatements.

Majority:

Three sections of the Act critical in defining prospectus 2(10), 10, and 12. Majority decides to skip 2(10) and read 10 first which they determine that information contained in the registration statement must be contained in prospectus which they suggest is for public offerings because only public offerings require registration statements. So theyc onclude that the prospectus must deal with public hearings and this meaning of prospectus must be used throughout interpretation of provision. Majority attacks Alloyds claim by saying they just focus on the one word communication and not the entire text. Majority uses noscitur a sociis Majority says that we should look at communication in relation to the other words in the text circular, notice, advertisementsDissent:

Dissent suggest that 2(10) would suggest that prospectus is merely the first item in a long list of covered documents Thinks that 2(10) is a catchall and operates as a a safety net of Congress to make sure that it caught everything GET NOTES FROM CASE AND READ PGS 243-49 AND GET NOTES!!!

Get pages 266-88 Notes from Casebook and do the reading!!!

As well as 289-96 and 299-307 read and get notes on cases!!!

Practice Problem!

IV. The Regulatory ProcessThe Administrative Regulatory Process/ The Role and Function of Administrative Agencies

Notes from book- pgs. 358-60

A great deal of both the initial lawmaking and the subsequent law-implementing work is done by administrative agencies located (at least nominally) in the Executive Branch of government.Notes from book- pgs 583-88

The Statutory Framework: The Administrative Procedure Act (APA)

The APA establishes the basic default rules of procedure for federal agencies to use when promulgating and enforcing regulations The APA is a framework statute laying out the basic structure and procedures for a set if important government institutions, and subjecting these institutions to legal and political controls. Courts have relatively felt free to adapt the APA to changed circumstances through a process of judicial interpretation, elaboration,and refinement that in some ways more closely resembles conventional understandings of constitutional, rather than statutory, interpretation. Section 559 makes it explicitly known that the APA provisions do not limit or repeal additional requirements imposed by statute or otherwise recognized by lawa. The Forms of Administrative Action under the APAAPA defines two major types of agency action as a rulemaking and adjudication

Rule- an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirement

Rulemaking- An agency process for formulating, amending, or repealing a rule

Adjudication- Agency process for the formulation of an order

Any process producing fial agency action that is not a rule is an adjudication for APA purposes, including many actions such as licensing that do not fit the model of an adversarial adjudicative hearing that resembles a trial.

APA divides the universe of possible agencies into four major categories and specifies different procedural requirements for each-

1. Formal rulemaking- governed by 556 and 5572. Informal rulemaking3. Formal adjudication4. Informal adjudicationFormal Rulemaking

Section 556 and 557 provide:

At a adversarial hearing the agency carries the burden of proof on contested issue, and must show that the proposed rule is supported by reliable, probative, and substantial evidence. Presiding officers is an ALJ who are agency officials Interested parties may participate in proceedings and present evidence and conduct cross examination unless the agency affirmatively concludes that they will not be prejudiced by the absence of such proceduresInformal Rule making a.k.a. notice and comment rulemaking governed by 553

553 does not require elaborate hearing process553 requires 3 main procedural requirements

1. An agency that proposes to make a rule through this process must give public notice by publishing its notice of proposed rulemaking (NPRM) The NPRM must include 1. a statement of the time, place, and nature of the public rule making proceedings;

2. reference to the legal authority under which the rule is proposed

3. either the terms or substance of the proposed rule or a description of the subjects and issues involved2. The agency must provide the public with an opportunity to comment on the agencys proposal. After the agency publishes its NPRM in Federal Register, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation3. If the agency decides to finalize a rule, it must publish an explanation of the rule; that is, agencies must incorporate in the rules adopted a concise general statement of their basis and purpose.In contrast with the express terms of the formal rulemaking provisions, however 553 contains no requirement that a final rule be based on any record compiled during the proceedings

Formal Adjudication governed by 556 and 557, and additional requirements described in 554

Trial like adversarial hearings that typically involve an agency seeking to impose some sort of penalty on a regulated party, or to resolve a dispute between two or more parties under a regulatory scheme administered by the agency Formal adjudication requires an opportunity for oral presentationInformal Adjudication

There is no section of the APA that specifies particular procedures for informal adjudication Informal adjudications are subject to procedural restrictions found in other statutes, the agencys own regulations, and the constitution, but overall the procedural requirements for informal adjudication are fairly minimalIn order to figure out which APA procedures apply to a given agency action, one must ask two questions.

1. Whether the action in question is a rule or an order? If it is a a rule the agency must promulgate it through a rulemaking process. If it is an order the agency must proceed by adjudication2. Whether its informal or formal?Guidance in determining these two questions:

b. Distinguishing between Rulemaking and Adjudication Rulemaking is typically about prescribing new law or making new policy, typically policy considerations concerned Adjudication is about applying existing law or policy to some set of facts, determinations of past and present rights and liabilities, like a determination of a persons right to benefits under existing lawWhen must an agency use formal procedures

553 of APA states that rulemaking is governed by formal procedures if the agency rule in question is required by statute to be made on the record after opportunity for an agency hearing Some statutes clearly use the triggering language found in 553(c) requiring agencies to issue regulations on the record after opportunity for a hearing. Other statutes say nothing of the sort and can proceed as informal rulemaking if it chooses???Get 551, 1, 4-9

553

This section applies, according to the provisions thereof, except to the extent that there is involved

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except

(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found and published with the rule.

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

Get 554, 556, and 556!!!

Get notes from text pgs 358-60 583-87; APA, 551, 1,4-9, 553, 554, 556 & 557. Gotta get statutes listed under the APA

Notice and Comment Rulemaking: Casebook at 604-17; APA 553

Policy Making by Adjudication: Casebook at 643-62, 668-70 (excluding note 1); 671 (note 3) 672; APA 553 Get book notes!!! Need to read Bell Aerospace p. 668-70 also on pgs. 666-68

Agency Guidance Documents: Casebook at 677-89; 690 (note 3) 694; 704-714; APA 553 Read!!!

An Example of Rulemaking Gone Awry: Materials at 60-90 (time permitting)

Practice Problem 3:

1. Rulemaking or Adjudication?- I would say rulemaking because we are dealing with a new policy that is being implemented. 2. Informal or Formal? Because there is no on the record after opportunity for a hearing I would say that this is an informal rule making3. Informal Rule making a.k.a. notice and comment rulemaking governed by 553

553 does not require elaborate hearing process553 requires 3 main procedural requirements

1. An agency that proposes to make a rule through this process must give public notice by publishing its notice of proposed rulemaking (NPRM) The NPRM must include 1. a statement of the time, place, and nature of the public rule making proceedings;

2. reference to the legal authority under which the rule is proposed

3. either the terms or substance of the proposed rule or a description of the subjects and issues involved2. The agency must provide the public with an opportunity to comment on the agencys proposal. After the agency publishes its NPRM in Federal Register, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation3. If the agency decides to finalize a rule, it must publish an explanation of the rule; that is, agencies must incorporate in the rules adopted a concise general statement of their basis and purpose.In contrast with the express terms of the formal rulemaking provisions, however 553 contains no requirement that a final rule be based on any record compiled during the proceedings

Notes from 605-17

The Paper Hearing Requirement-

Section 553 of the APA requires that agencies provide information to the general public at both the beginning and the end of the rule-making procedure. At the beginning of the process, 553(b) requires that the agency provide advance notice of either the terms or substance of the proposed rule or a description of the subjects and issues involved. If the agency chooses to promulgate a final rule, 553(c) requires that the agency provide a concise general statement of [the rules] basis and purpose.

553(b) and (c) only require a concise and general statement however courts have interpreted these provisions as requiring more.

United States v. Nova Scotia Food Products Corp.

Issues raised regarding the informal rule-making procedure:

1. What record does a reviewing court look to? The reviewing court should look at the administrative record already in existence and not some new record made initially in the reviewing court.2. How much of what the agency relied on should have been disclosed to interested parties? Court thinks that agency should have made known the data that it was using and relying on to the public because the pertinent information was readily available. Thinks that agencys failure to disclose to interested persons the scientific data upon which the FDA relied was procedurally erroneous.3. To what extent must the agency respond to criticism that is material? Court thinks general statement is inadequate here. Court says under the circumstances the agency needed to answer vital questions.Notes from text:

1. Must agencies disclose data and studies supporting a proposed rule? 553 (b) suggest that a general statement is fine. However courts have read the notice requirement in conjunction with providing an opportunity for comment. Basically saying how could be comment if statement is not specific enough. 553(b)(2) explicitly requires that the agencys notice include reference to the legal authority under which the rule is proposed643-72

Adjudication

Notes from text:

APA divided into rule making and adjudication

SEC v. Chenery a pre-APA case established that an agency may announce a new policy decision in an adjudicative order rather than through a rule-making. SEC modifies a rule through adjudication, basically creates a rule through adjudicationSEC v. Chenery:

Court expressed that it preferred rule making through quasi-legislative promulagtion of rules to be applied in the futureReasons court gave why SEC could create a rule through an adjudication:

court wanted to preserve the agencies flexibility with unforeseen problems as they arise (Justice Jackson thought they were just giving court license to make up rules as they went along)Notes from text pgs 657-672

The Legitimacy of Policymaking through Adjudication

Chenery:

Jacksons dissent: Administrative authoritarianism in his view the majority in Cheneray gave agencies a license to make the rules up as the go along- governing without law

Murphy majority opnion: asserted that Tthe Sec was only applying an existing statutory requirement to new and unforeseen circumstances (The SEC asserted correctly that under the statute it could approve a reorganization plan only if that plan was fair and equitable and the SEC further asserted for the first time in any binding agency statement- that a reorganization plan would not be fair and equitable.

Rulemaking Procedures and the Circumvention Concern

Formal adjudication is heavily proceduralized in some way more than rulemaking One might be concerned that agencies may use formal administrative adjudication to circumvent notice-and-comment rulemaking procedures. Notice-and-comment rulemaking procedures are generally better designed to elicit input from a broad range of constituencies, and to encourage the agency to view its proposed rule from a more general holistic perspective Adjudication rulemaking may enable agencies to make general policy decisions under the political radar If rulemaking were obligatory however an agency that wanted to create a new rule to apply in a particular case would have to suspend the adjudication and intiate a separate rulemaking processRetroactivity- Sec applied its new rule even though Chenery group had no way of anticipating that the SEC would impose such a requirement

The Court in Chenery instead emphasized that retroactivity was not per se unlawful, as every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency. Retroactivity would render an adjudicative order invalid, according to the Court, only when the ill effect of the retroactive application of a new standard outweighs the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. Wholesale & Dept. Store Union v. NLRB explained that an assessment of the legality of retroactive administrative action under Chenery required consideration of five factors:1. whether the particular case is one of the first impression2. whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law3. the extent to which the party against whom the new rule is applied relied on the former rule4. the degree of the burden which a retroactive order imposes on a party5. the statutory interest in applying a new rule despite the reliance of a party on the old standard (Aerospace Workers v. NLRB reformulating the five-factor test as a three-factor test but without substantively changing the inquiry)The Consequences of Chenery II

Most significant consequence of Chenery is that certain agencies most notably he National Labor Relatipns Board do virtually all of their policymaking in adjudicative orders rather than rulemaking However most agencies engage in a significant amount of rulemaking activity Agencies recognize that they will be able to make higher-quality decisions if they solicit broad public input associated with rulemakingNLRB v. Aerospace

Issue was whether the agency could overturn a precedent in an adjudication? The COA said no. THe Supreme Court said yes. Supreme Court said Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Boards discretion. Although there may be situations where the Boards reliance on adjudication would amount to an abuse of discretion or a violation of the ACT nothing in the present case would justify such a conclusion. Bell Aerospace acknowledged that there may be a retroactivity concern but Aeroespace reaffirmed the Chenery II balancing approach to retroactivity requiring a showing either of substantial adverse reliance on the past agency policy, or the imposition of some penalty (e.g fines or damages) for past conduct that was consistent with the agencys then-prevailing policy. If a new agency policy implicates substantial reliance interests or subjects regulated entities to new liability, an agency cannot announce that new policy in an adjudication.Notes from pgs 677-89

b. General Statement of Policy553(b)(a) says that notice and comment requirements do not apply to an agencys general statements of policy. An agencys policy statement (sometimes referred to as a guidance document)is an agency memorandum, letter, speech, press release, manual or other official declaration by the agency of its agenda, its policy priorities, or how it plans to exercise its discretionary authority. These provide advance warning about how the agency is likely to resolve questions that come before it.

Problem with them is that they can bypass the safeguards built in notice and comment rulemaking process.P G & E v. Federal Power:

Involved a situation where the nation was going through a natural gas shortage. Policy statement was issued by the FPC in which they suggested that residential users should have priorityPros listed of statements of policy in this case:

Encourages public dissemination of the agencys policies prior to their actual application Facilitates long range planningDifference between a policy statement and a substantive rule is that a substantive rule establishes a standard of conduct which has the force of law

A general statement of policy, on the other hand does not establish a binding norm.

Court will more likely use more review over a general policy statement because it is adopted without public participation thus scope of review will probably be broader.

The rulemaking process has a more thorough exploration of the relevant issues. And a policy statement when it is encountered with judicial review may be the first time it is subjected to full criticism by interested parties. Consequently a policy judgment expressed as a general statement of policy is entitled to less deference than a decision expressed as a rule or an adjudicative order.

1. The Force of Law Test- Substantive rules have the force of law meaning that the only question in the subsequent administrative proceedings is whether the regulated parties conformed their conduct to the rule. In contrast a policy statement merely declares in advance how the agency intends to exercise its discretion in the future; the agency cannot rely on the policy statement in subsequent proceedings. P&G E explained that when the agency applies the policy they must be able to support the policy just as if the policy had never been issued. If the agency rejects based on a policy statement then they need to be able to support why at adjudication.3. Limitation on the Agencys Subsequent DiscretionNotes from pgs 704-14

2. The Defining Characteristics of Interpretive Rules- an interpretive rule is an agencys declaration of what it thinks some statutory or regulatory command actually means. Interpretations are based on the flexibility/inflexibility of the rule or the coercive affects, so whatever the underlying rule is is what the interpretive rule is.Suppose an agency issues a statement that is framed in mandatory and inflexible terms, if the agency were to use a general policy statement concerning the rule than the general policy statement would be characterized as inflexible and the court would reject it, however if the agency chooses to characterize the statement as an interpretive rule than then the fact that the agencys statement is inflexible, mandatory, and coercive may not matter.

an interpretive statement simply indicates an agencys reading of a statute or a rule. the court is looking for reasoned statutory interpretation, with reference to the language, purpose, and legislative history of the relevant provision.Hoctor v. United States Dept of Agriculture:

found the height requirements for the animal cages arbitrary thus there was the question of whether it really was an interpretive rule (bright-line numerical rule) Posner held that such arbitrary decisions need to go through notice and commentNotes from stuff after the case

the purpose of the interpretive rules is to tell how the statute is to be applied, gives people a heads up of how the agency will interpret commands Does public a favor by announcing the interpretation in advance of enforcement the more terms are looked at as being presumptive rather than absolute more likely to be found to be interpretive rules (one counter to this is that this does not help because if the underlying statute is rigid than the interpretation will be rigid and also the other way around) another argument is to focus on the generality or specificity of the underlying statute or regulation that the agency is allegedly interpreting. Basically the more general a statute the more interpretive rules discouraged because it would more likely be making policy with notice and comment section, the more specific an underlying statute the more interpretive rules should be used. (2 difficulties to this approach is that how can the courts tell when a underlying command is too vague to allow the agency to interpret it by issuing much more detailed and specific commands? Secondly what is the purpose of the requiring the agency to go through a notice and comment if they can just easily announce it in an enforcement action.Notes from 473-76, 551-66, 572-78

Congress and Presidential Influence over Agency Policy

Power of the purse gives Congress 3 important sources of influence over agencies.

1. Congress may attach substantive riders to appropriation of bills that restrict the authority of the agency to make certain decisions, for ex. forbidding the money on certain things or favoring the money for certain things2. Congressioal purse gives members of Congress power over agency because they want to please them so that they can get more funds3. Congress can control how aggressive an agency can be by controlling the resources that are at the agencys disposal,Hearings, Investigations,Audits, and other Forms of Oversight

all can be used to threaten the agency in some way Illustrates that sometimes you have to consider these factors when you are interpreting a statute.Notes from 551-66

Centralized Regulatory Review

Reagan dramatically expanded centralized White House review of agency regulations with EO 12291 which required all executive branches to submit proposals for major regulations (PROS where that agency actions were more closely tied to ideals of Presient, CONS is that some say is implemented a burdensome review procedure that it itself a deterrent to new regulations. President Clintons replaced EO with his EO 12866: remains the governing authority for the regulatory review processExecutive Order 12866:

Sec 1 Statement of Regulatory Philosophy and Principles

(a) The Regulatory Philosophy. maximize net benefits pgs 554-562(b)Principles of Regulation.:

1. Each agency must identify the problem it intends to address as well as assess the significance of the problem2. GET THE REST!!!Notes from text:

1. Centralized Reg Review and Presidential Oversight of the Administration EO 12866 seeks to assert greater Presidential control over the administrative state by subjecting agency regulatory policymaking to greater White House supervision One critic is that neither the President nor the OMB have the requisite expertise in the substantive policy areas to second-guess the programmatic agencies, yet in practice this is precisely the sort of second-guessing that OMB oversight both allows and encourages OMB supervises interagency review process, and OIRA gets the executive branch agencies submitted proposals for major regulations OIRA is responsible for providing guidance and oversight so that an agencys regulatory are consistent with applicable law, the Presidents priorities, and the principles set forth in the Executive Order and do not conflict with policies ot actions of another agencyPresidential Directives p. 572-78

-Executive Order 12866 is designed principally to review regulatory proposals that originate with the programmatic agencies.

-OIRA not alone reviews proposals but sometimes sends letters to agencies prompt letters encouraging agencies to take regulatory action to deal with some perceived problem.

-Separate and apart from OIRAs letters the President sometimes issues directives to specific agencies. These directives usually have the effect of encouraging or demanding that the agency take some regulatory action.

Memorandum on Clean Water Protection- Directive

1. Does the President have the legal authority to direct agency action?

Materials pgs 92-99

Spirit of the Sage Council v. Norton (shows that agency should have presented PRR through rule making instead of saying it was an interpretive rule)United States District Court for the District of Columbia, 2003.

Finding that the PRR was promulgated in violation of the APA's notice and comment requirements, the Court will vacate and remand the PRR for further consideration by the Services.

because the government explicitly relies on the PRR to bolster its contention that the No Surprises Rule is consistent with the requirements of the ESA, it is remands the No Surprises Rule for consideration as a whole with the PRR.

1. Public Notice and Comment

Under the APA, federal agencies generally must publish notice of proposed rulemaking in the Federal Register to give interested persons an opportunity to comment and participate in the rulemaking. 5 U.S.C. 553(b). That notice-and-comment provision applies to "legislative" or "substantive" rules that establish legal requirements, but not to "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. 553(b)(A).

Notes from pgs 756-75- Review of Agency Policy Choices:

C. Modern Hard Look Review- means the court hard look at the agencys reasoningMotor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. (Hard Look case)

-Case about Congress enacting the National Traffic and Motor Vehicle Safety Act (NTMVSA)- directed the secretary of transportation to issue motor vehicle safety standards

Act authorized judicial review Court finds that the agency failed to present an adequate basis and explanation for rescinding the passive restraint requirements and that the agency must either consider the matter further or adhere to or amend Standard 208 along lines which its analysis supportsThe Hard Look Standard found in State Farm:

-The scope of review under the arbitrary and capricious standard is narrow and a court is not suppose to substitutes its judgment with that of the agency. the agency must nevertheless examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.

(a) Agency action is arbitrary and capricious if the agency has entirely failed to consider an important aspect of the problem. arbitrary and capricious if the agency has failed to address a significant criticism of, or proposed alternative to, the agencys final policy choice. NHTSA failed to consider other alternatives (this raises two issues 1. what counts as an important aspect of the problem 2. under what conditions has an agency completely failed to consider an important aspect of the problem)(b) Agency action is arbitrary and capricious if it relies on factors which Congress has not intended it to consider. An otherwise reasonable agency explanation of an agency action may be unreasonable if it neglects the factors Congress has identified as important and/or relies on considerations that Congress has indicated ought not to be considered(c) Agency action is arbitrary and capricious if the agency has offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. court may set aside an agency action as arbitrary if the agency has made a clear error in judgment. (NHTSA failed to address that people will more likely than not where seat belts)Materials 99-103

The EPA Sulfur Dioxide Standards for New Power-Plants

Notes from Pages 814-27

Chevron Review of Agency Statutory Interpretation

Chevron v. NRDC

Facts:

Amended Clean Air Act called for states that still had not achieved national air quality standards set by the epa establish a permit program regulating new or modified stationary sources of air pollution. In order for a permit to be given to these stationary sources, stringent conditions had to be met The EPA regulation allowed states to adopt a plantwide definition of the term statutory source which under this definition of the term stationary source plants were allowed to modify one piece of equipment and as long as the alteration did not increase the total emissions from a plant they need not meet the permit conditionsIssue: Whether the EPAs decision to allow states to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single bubble is based on a reasonable construction of the statutory term stationary source?

Holding: Court concludes that congress was silent and that the legislative history did not show congress specific intention on the applicability of the bubble concept and that the EPAS use of that concept here is reasonable policy choice for the agency to make

2 Questions presented when a court reviews an agencys construction of the statute which it administers.1. Whether Congress has directly spoken to the precise question at issue? (reviewing court can use traditional tools of statutory construction, if they can find a clear intent of Congress than they use that if not than they move to step two)- this view not always used some time they go straight to the agencys interpretation2.(If silent) The reviewing court should uphold the agencys resolution of the statutory ambiguity so long as the agency has adopted a permissible construction of the statute that is so long as the agencys interpretation is reasonable. (Sometimes viewed as analogous to State Farm style review under the arbitrary and capricious standard of APA: the agency must adequately explain its choice, responding to reasonable objections and proposed alternatives)(If court determines that Congress has not spoken on the precise issue at hand that court does not impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. If statute is silent than court determines if the agencies answer is based on a permissible construction of the statute.)

Court looks at the legislative history and says:

does not contain specific comment on bubble concept or information on whether a plant wide definition of stationary source is permissible Does find where Congress expressed the conflict of accomodating economic interests in permitting capital improvements and environmental interests in improving air quality FIND LEGISLATIVE HISTORY AND STATUTE SILENT ON THE PRECISE ISSUE AT HANDCourt:

The Legislative history illustrates the policy concerns that motivated the enactment and that the plantwide definition falls within one of the concerns of congress which was the allowance of reasonable economic growth and that the EPA advanced a reasonable explanation for its conclusion