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The Legislative Process..................................................................................................................1 How a Bill Becomes Law ...........................................................................................................1 Enrolled Bill Doctrine .................................................................................................................1 Amendments ...............................................................................................................................

1 Interpretive Aids .........................................................................................................................2 Theories of the Legislative Process ...............................................................................................2 Systems of Representation ..........................................................................................................2 Theories of Representation .........................................................................................................3 Theories of the Legislative Process ............................................................................................4 Approaches to Statutory Interpretation ......................................................................................7 Prescriptive Theories ..................................................................................................................7 Descriptive Theories ...................................................................................................................7 Textualism...................................................................................................................................8 Intentionalism .............................................................................................................................9 Dynamic Theories .......................................................................................................................9 Critical Theory ..........................................................................................................................11 Statutory Directives ..................................................................................................................11 Textual Analysis ...........................................................................................................................12 Ordinary Meaning .....................................................................................................................12 Technical Meaning....................................................................................................................12 Punctuation and Grammar Rules ..............................................................................................12 Textual Canons .........................................................................................................................13 Exceptions to Plain Meaning ....................................................................................................15 Extrinsic Aids to Interpretation .................................................................................................16 Statutory History .......................................................................................................................16 Legislative History ....................................................................................................................16 Statutory Stare Decisis ..............................................................................................................17 Legislative Acquiescence..........................................................................................................18 The Role of the Common Law..................................................................................................18 Substantive Canons......................................................................................................................19 Overview ...................................................................................................................................19 Constitutional Avoidance..........................................................................................................19 The Rule of Lenity ....................................................................................................................20 Federal Preemption of State Law ..............................................................................................20 Federalism Canons ....................................................................................................................22 Substantive Canons in State Courts ..........................................................................................23 Conflicting Statutes ...................................................................................................................23 Effective Dates & Retroactivity ................................................................................................24 Administrative Agencies ..............................................................................................................25 Congressional Methods of Enforcement ...................................................................................25 Agency Authority to Regulate ..................................................................................................26 Private Rights of Action............................................................................................................27 Enforcement of Statutory Schemes ...........................................................................................27 Agency Control .........................................................................................................................27 Administrative Rulemaking ......................................................................................................28 Deference to Agency Interpretation ..........................................................................................29 1

Statutory Interpretation Professor Bruhl Spring 2011 THE LEGISLATIVE PROCESS I. How a bill becomes law: Intro House Committee House Rules Committee House Floor Senate Committee UCA or Motion to Proceed (60 votes) Senate Floor (60 votes) Conference Committee (to iron out differences in bills from both houses) House & Senate Floors Again (to vote on version worked out in Conference Committee both houses must pass same text enrolled bill) (60 votes in Senate) President if President vetoes, goes back to the houses and requires a 2/3 vote in each to override his veto A. Issues with the Legislative Process 1. Earmark direction in a bill to spend money on a particular thing 2. Logrolling vote trading 3. Rent-Seeking: getting paid to give certain groups benefits (by vote trading or getting support from interest groups) II. Enrolled Bill Doctrine (JH p. 15) A. Exception to the bicameralism & presentment clauses 1. A bill is only supposed to become law if both houses have signed the exact same version of the bill, which is then submitted to the president B. If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted. 1. A plaintiff can't assert that a statute is void for failure to enact the exact text in an authenticated enrolled bill just because there is some legislative history indicating that the bills actually passed by the two houses were different from the enrolled bill. a. Sometimes they will make a tiny error so they versions are not exactly the same they're not supposed to be able to go back in and fix it themselves, they are supposed to amend it b. But its not that troubling to allow the houses to certify that they have passed the same bill just by the fact that they each signed it, because when they decide to go back and fix an error between the versions passed in each house, the whole of the house must be behind the amendment of the error c. If anyone had snuck in something they hadn't agreed to pass, they would know it and they would be able to take action against that person) III. Amendments: A. Introducing an amendment: sometimes if things are going well you kind of want to keep quiet and not rock the boat. There is a chance that the amendment will be voted down B. Rejected Amendment Rule have to subscribe some meaning to a rejected amendment if X was proposed and fails, it means, not X

IV. Interpretive Aids A. Created at vetogates; indicate deliberation in the legislative process B. Produced by the President 1. Signing Statement additional document President signs when he signs a bill 2. Two kinds: a. Legislative history: says what the presidents understanding of the bill is and why hes signing it b. Constitutional signing statement: controversial looks like a line item veto: he says he thinks the bill interferes with his constitutionally provided executive power i. Increasingly designed to give guidance to administrative actors who will implement the laws and to influence judicial interpretation of the legislation C. Produced by Congress 1. Committee reports provide an overview of the policy need for the statute and the an analysis of each provision and how it relates to other parts of the provision 2. Conference reports report of the two houses from their meeting to consolidate their two versions of a bill 3. Committee mark-ups: show how a bill was changed from its original proposed form (not very reliable; they never enacted the first one) 4. Sponsor statements what the sponsoring legislator says about why he is proposing the bill when he submits the bill for consideration 5. Statements by supporters not very reliable because they plant statements in order to influence interpretation of the bill later 6. Drafting and deliberation history earlier versions of the bill not submitted , or submitted then withdrawn, or most significantly, rejected from the bill 7. Statements of non-legislative drafters: lobbyists almost meaningless unless they have a whole lot of expertise 8. Floor debates usually previously agreed what they will say on the floor so it doesnt mean much 9. Subsequent legislative history not very reliable but sometimes considered if the legislature relied on a previous interpretation in a subsequent statute, or if they relied on a certain construction of federal law when enacting a subsequent statute THEORIES OF THE LEGISLATIVE PROCESS I. Systems of Representation A. Representative Government - citizens vote for representatives, who enact legislation 1. Pros a. Weeds out the proposals most responsive to temporary or partial considerations, because lawmakers would deliberate and choose better options b. Representatives are accountable to citizens because they have to get reelected

c. Inhibits the tendency of popular majorities to penalize unpopular minorities 2. Cons a. Means that laws will almost never be adopted or ratified by popular vote b. Agency problem: representatives can get elected and then betray their constituents interests by self-dealing, rent-seeking, or being lazy i. Rent-Seeking: attempting to obtain economic rents through government intervention in the market 3. Theories of Representative Voting a. Trusteeship: representatives vote the way they think is best for their constituents, not necessarily the way they think the constituents would vote b. Mirroring: vote the way the constituents would vote B. Direct Democracy - people participating in civic activities 1. Pros a. Most direct way for individuals to express their preferences b. Republican view: popular initiatives promise to engage the citizenry in lawmaking and stimulate public deliberation of issues 2. Cons a. Raises accountability/agency problems - sometimes representatives dont do what the people want b. Not cool because the minority is powerless against the majority c. Average citizens dont know as much as legislators might C. Hybrid of Representative and Direct 1. Most laws are enacted by a legislature 2. But there is a possibility for popular initiation of laws if the legislature does not act (voter initiative) or popular override of laws the legislature does enact (voter referendum) 3. Pros a. Might urge lazy representatives to deal with pressing matters of public interest in order to avoid an extreme ballot question b. Ability of the citizenry to legislate might prevent entrenched interests from preventing reform c. Monitor self-dealing and rent-seeking in the legislature 4. Cons a. Might just increase the influence of special interests over lawmaking because they have a lot of money and organization b. Representatives might refuse to compromise to achieve traditional legislation because they know they can just submit more extreme proposals to a popular vote II. Theories of Representation A. Liberal Theories (Hobbes, Locke, Bentham, Madison) 1. Citizens are rational actors who need government to achieve cooperative goals and to resolve differences among themselves

2. Legitimacy of the law rests on its procedural pedigree: its adopted by representatives elected by the citizenry 3. Citizens have an obligation to obey the law and seek any changes through established procedures 4. Representatives pursue the interests of their constituents as their collective agent 5. Legislation process: representatives reflecting different interests bargain and logroll until most of the relevant interests are satisfied a. Logrolling: vote trading Ill vote for your if you vote for mine 6. Lawmaking is the result of aggregating the preferences of a majority of representatives, who mirror the preferences of a majority of their constituents B. Republican Theories 1. View citizens as less autonomous and more profoundly affected by their communities 2. Individuals preferences are not fixed, they are shaped by the process of enacting legislation, and other interactions 3. Law protects citizens against violence and creates opportunities for positive human flourishing a. Flourishing encourages citizens to actively participate in lawmaking process 4. Legitimacy of law rests on substantive guarantees as well as procedural justice 5. Lawmakers constituency is the public good her role is to deliberate as a trustee for the people C. Critical Theories 1. Skeptical that representation amounts to anything more than a social construct 2. Focus more on representation of groups than individuals or the common good 3. System of representation must include members of historically subordinated groups in sufficient numbers to influence outcomes III. Theories of the Legislative Process A. Proceduralist Model 1. Process is full of complex hurdles that legislators have to overcome to enact anything - vetogates 2. Vetogates: checkpoints in the legislative process that can stop a bill from becoming law a. Constitutional prohibitions are strongest: they can be changed only through a constitutional amendment b. Bicameralism & Presentment: law has to be adopted in the same form by both chambers and presented to the President to sign or veto c. Some actions require a 2/3 supermajority (e.g., overriding a presidential veto) B. Implications 1. Makes it harder to legislate 2. Statutes are costly 3. Takes a lot of effort - mobilization, political capital; have to make deals to get votes by giving goodies to other legislators (pork-barrel) 4. Statutes are hard to amend 5

C. Tethonis - human lover of goddess Eos; Zeus gave him immortality but he didnt give him eternal youth 1. Tethonis Problem: statutes get really old but never die; thats why its bad that its really hard to amend them D. Arguments for legislation being so difficult: 1. Promotes compromise/ bipartisanship 2. Gives some power to the minority party to resist the majority's promotion of their own interests 3. Makes it harder for bad legislation to be passed (but it also makes it harder for good laws to pass) 4. Keeps too much legislation from being passed to restrict limitations on individual freedom E. Arguments against legislation being so difficult: 1. Can push the action elsewhere: a. certain things need to be done and are going to be done one way or the other b. if legislation wont do it, the executive branch often will i. Ex.: like if congress wont legislate CO2 emissions, the EPA will aggressively interpret their regulatory power to regulate it themselves c. Encourages activist judiciary: if the statute is obsolete but it will be impossible to amend it, the court can decide to "amend" the law by "interpreting" it d. Recess appointments: if the president is being filibustered in his appointments, the president can use recess appointments to get his appointments done anyway F. Interest Group Model 1. Special Interest Groups are a positive way for people to participate in the legislative process 2. Can be a good way to demonstrate the intensity of feeling about a certain measure: a law may be passed by referendum because 51% of voters 3. When the legislature is clear about what it wanted, we should give it to them 4. When it doesnt, have to give it your best shot at understanding 5. Tension between ruling in accordance with Congress or ruling for the weaker party a. Take into account the likelihood that the legislature will revisit what theyve done with the legislation b. Always rule in favor of the weaker favor (less power in the legislative process - rule against the stronger interest group) c. If you rule against the weaker party, they're not going to be able to go to the legislature and get the decision changed if the court was wrong d. If you rule against the stronger party, that group can go back the legislature and get the law changed because they have more influence 6. Deliberation-forcing: forcing the legislature to go back and deliberate again to be more clear, when the court rules against the stronger interest group G. Two Views of Interest Groups 6

1. Optimistic/Pluralism- all the groups have access to the political process a. Since there is a spirit of competition between the groups, the groups that reflect the public's interests are generally the ones that prevail b. The political process generally reflects the will of the public c. Because there are so many groups, its really hard for just one to dominate d. If there are all these general interests, there isn't much of an incentive to contribute because everyone kind of generally wants good public services but dont care to lobby for them - like streets, clean air, etc. pluralism can breed apathy 2. Pessimistic/Public Choice Model - interest groups as pernicious political influences a. Citizens organize into groups for political action b. Take complaints to the legislative process and the political process is the way they resolve it c. Transactional Model: Public choice views groups as legislative process as an economic transaction, groups buy policies they like by giving support to politicians i. When legislation spreads cost but benefits a few, we should read it narrowly Benefits Distributed Majoritarian Politics Little interest group activity usually funded through tax increase or adding to national debt, so no one fights against having to pay Benefits Concentrated Client Politics Interest groups strongly support Includes a lot of logrolling and earmarks Too much benefit to one interest like tax loopholes Interest Group Politics Very specific groups will get benefits and other specific groups will bear cost Most influential as a bill blocker than at getting legislation passed

Costs Distributed

Costs Concentrated

Entrepreneurial Politics Representatives will risk the punishment from the groups bearing the cost if they are convinced that the change they effect will reward them Tough to legislate - not a lot of people to lobby because benefit is spread out and the people whom the cost is concentrated on will fight against it

3. Criticisms of public choice approach a. Parties are stronger and more polarized today than they used to b b. One function of the party is to protect the brand c. Legislative process tends to be parochial in terms of what gets them reelected: keeping their voters and their special interests happy d. There is some need to please the special interests because you want their vote

e. However there is still the track of one person, one vote, and they might not all like the special interest f. Issue of media attention where everyone notices everything you do g. Attentive v. inattentive public: sometimes people dont see or dont pay attention to what's going on h. Politics tends to be more majoritarian on high profile issues i. Tend to be swayed by public and special interests in lower profile issues H. Implications for statutory interpretation 1. Debate through the whole course: what should your interpretive mood be? a. One is: interpret legislation broadly in accordance with its purpose follow spirit of the law and not the letter b. Narrow reading mood: lets see what exactly the agreement was, and we'll enforce that and nothing more 2. Judge Easterbrook: narrow interpretation at concentrated benefits and distributed costs: not a public regarding purpose to the legislation so there's no public good to interpreting broadly a. Ex: grants of public land should be narrowly construed: i.e., mineral grants 3. Rule of statutory interpretation that comes out of public choice theory: Always rule against the more powerful interest group - they can go back to the legislature and get it fixed 4. Differential rate of error correction: a. Legislature errs on the tough side of interpretation b. Court errs on the lenient side c. Its harder for the legislature to amend statutes, but a court can always be overturned APPROACHES TO STATUTORY INTERPRETATION I. Prescriptive Theories: tell citizens, agencies, and judges how they ought to interpret statutes A. Prescriptive Theories Rests On Theories of State Legitimacy 1. Theories of statutory interpretation are sometimes weighed based on their ability to contribute to these theories of state legitimacy a. Rule of Law Idea: statutory meaning should be neutrally applied to everyone b. Democratic Legitimacy Idea: interpreters ought to defer to decisions made by the popularly elected legislators who enact statutes c. Pragmatic Idea: interpreters have an obligation to contribute productively to the statutory scheme and ultimately to the common good II. Descriptive Theories: tell us what citizens, agencies and courts actually do when they interpret statutes A. Problem solving judges in the real world are guided by several different goals when they construe statutes, and consider a variety of sources for meaning B. Different theories of interpretation lead to different results

III. Textualism A. Plain meaning of the text is the best evidence of legislative intent or the only authoritative basis for interpretation 1. Leading theory of interpretation, but not dominant 2. Plain meaning might be the best guide for applying a statute because it is the most obvious and maybe the most objective focal point 3. Doesnt get you very far in the difficult to decide cases, which most are, or you wouldnt be struggling to interpret them B. Two Kinds of Textualism 1. Some think the text is all that matters and you dont need anything else 2. Some are softer and are willing to look at other sources if its unclear C. Soft Plain Meaning Rule 1. Existence of an apparent plain meaning is not dispositive, because something deeper is going on when statutes are interpreted 2. Admits that the goal of the inquiry is intentionalist, and plain meaning is just one important source of information about legislative intent or purpose 3. Might be a concession to normative complexity a. if the rule of law requires interpreters to apply statutes to the letter, sometimes the cost of "lawfulness" will be too high 4. Can't be sure the plain meaning is so plain unless you consider the legislative deliberations and the practical consequences 5. The idea that meaning depends on context may destabilize plain meaning altogether D. New Textualism 1. Goal of interpretation is to discern the text's meaning and strongly urges rejecting sources like legislative history 2. The only object of statutory interpretation is to determine the meaning of the text and that the only legitimate sources for this inquiry are text-based or linked sources a. When the text is relatively clear, interpreters should not even consider other evidence of specific legislative intent or general purpose b. Judges should almost never consult or rely on legislative history c. But that doesnt mean judges can't consider context d. Willing to consider various sources to provide context: i. Dictionaries, especially those contemporaneous with the statute ii. Other provisions of the statute and how competing interpretations fit with them iii. How similar provisions in related or borrowed statutes have been interpreted 3. Argues that disregard of legislative materials is required by the rule in Article I, Section 7 of the Constitution a. A bill does not become a statute unless it has been accepted in the same textual form by both Houses of Congress and presented to the President

IV. Intentionalism - Best evidence of what the legislature wanted is what they actually said A. Goal: to discern and enforce legislative intent 1. Statutes are directives from legislatures elected by the public 2. Therefore we should apply them in a manner consistent with the expectations of their authors 3. Becomes more driven by non-legislator value choices the further it gets from specific intent 4. Evidence of actual intent itself might be subject to varying interpretations B. Three Approaches: 1. Specific: what did legislators think about the specific question or application a. Hard to discover b. Unknowable when interpreters face new problems not considered by drafters 2. Imaginative Reconstruction: hypothetical intent; what would they have meant or thought? a. Benefit is that it rests on its ability to link a current interpretation to past legislative majorities b. Often can't prove that one interpretation was the one actually intended by the enacting legislature 3. Purposivism/General Intent: what did they mean to fix with the law? a. Considers the spirit of the law b. Asks questions that might have gotten a bigger consensus in the legislative deliberations than would a specific intent question c. Can oversimplify or suppress competing purposes d. Does not reveal determinate answers when there is no neutral way to arbitrate among different purposes C. Actual intent v. imaginative reconstruction of intent 1. Actual: looking at statements in legislative history that tell you what the intent was 2. Imaginative: what would they have wanted? D. Specific v. general intent 1. Intent on particular question before the court 2. Other times more general, in terms of what the legislature was trying to accomplish? 3. Intent kind of blends into purpose as you get more general - what were they trying to accomplish, rather than this specific issue V. Dynamic Theories A. Application of statutes is flexible and dynamic over time 1. Recognize that theories are normative because interpreters are making value choices when they interpret statutes 2. As a statute is applied over time, is not something hard but a fluid process, influenced by men's creative impulses 3. Judges are reluctant to endorse these theories without more evidence that the theories are sufficiently constraining on interpreters or guiding to citizens

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B. Best Answer Theories 1. Statutes should be construed to produce an optimal state of affairs by construing them in light of the purposes that they may best be made to serve, rather than the intentions the legislators had in drafting them 2. Natural Law Theories a. Statutory texts should be read to reflect the underlying moral reality inherent in those words or in the evolving statutory policy 3. Coherence Theories a. Legal Process Theories: statutory text should be construed not only in light of statutory purpose, but also statutory precedents and the principles and policies followed by the polity i. The court should be reluctant to construe a statute beyond its original purpose when such construction is strikingly inconsistent with traditions of religious liberty b. Equilibrium: if the consensus is unshakeable in the short term, the policy is in equilibrium, and anyone who knows the political and legal lay of the land knows what the equilibrium is i. Most citizens obey the law not be looking it up in the codes or by reading committee reports, but by simply observing the way things are done and occasionally asking an authority C. Pragmatic Theory: 1. Intellectual framework is not single-minded, but is a web of beliefs, interconnected but reflecting different understandings and values a. Human decision making tends to be polycentric, spiral, and inductive, not linear or one dimensional b. Can support different theories of statutory interpretation c. Look to multiple goals for statutory interpretation and consider multiple sources D. Funnel - making a cable out of different tools of interpretation, rather than a chain 1. Reflects the multiplicity of considerations and the conventional hierarchy among them 2. Most concrete considerations, like text, outweigh abstract ones, like best answer Most abstract current values evolution of statute

policy/justice
democracy rule of law

legislative purpose imaginative reconstruction specific legislative intent statutory text

Most concrete & authoritative 11

VI. Critical Theory: A. Deconstructive: opens up interpretive possibilities in statutory texts 1. Deconstructs the rule of law itself by revealing multiple possibilities 2. If interpretation depends critically on the perspective of the interpreter even more than on what the text says, the seemingly subordinate subject actually controls the meaning of the supposedly superior object a. If the hierarchy is flipped and the interpretation depends on the perspective of the interpreter even more than on the text, the subordinate object actually controls the meaning of the supposedly superior object B. Reconstructive: suggests positive moves that interpreters could take in the face of pervasive indeterminacy 1. statutory interpretation as a counterhegemonic force in our polity, insisting that unspoken voices be considered C. Deliberation-Forcing: when its not clear what the legislature wanted, dont just give it your best shot regarding what the legislature wanted, rule against what they probably wanted (against the majority party) so they have to go change it VII. Statutory Directives: Sometimes the legislature will pass laws that give instructions to the courts on how they want the courts to interpret statutes A. Generally way too weak and ambiguous and dont accomplish anything; dont make sense TEXTUAL ANALYSIS I. Ordinary Meaning A. TCCA 311.011, 312.002 B. Plain Meaning Rule: a statute that is clear an unambiguous must be construed according to its plain meaning 1. Patrie v. Area Coop. Educ. Serv. (p. 82) a. Assault in the context of school teachers means violent physical attack, because it has a common meaning for them and they would not be expected to look it up 2. Relevance of Audience a. Whose understanding of the ordinary meaning is relevant? i. Drafters of the statute? ii. Legislators who voted for the bill? iii. Public as a whole? II. Technical Meaning: sometimes words have a legal meaning distinct from their ordinary meaning III. Punctuation and Grammar Rules (TCCA 311.012, 311.016, 312.003, 312.012) A. Serial Comma Rule: in a series of three items, if each is set off by a comma, then each item should be viewed as independent of the others B. When a modifier is set off from a series of antecedents by a comma, the modifier should be interpreted to apply to all of the antecedents 1. People may drive cars, motorcycles, and bikes, but only on Thursday 2. Says that driving those vehicles is only allowed on Thursday 12

C. Rule of Last Antecedent 1. When a modifier is not set off from an antecedent by a comma, then the modifier should be interpreted to apply only to that antecedent a. People may drive cars, motorcycles, and bikes but only on Thursday b. Means bikes can only be driven on Thursday; cars and motorcycles can be driven anytime 2. Qualifying words, phrases, or clauses will ordinarily be construed as referring to the words, phrases, or clauses immediately preceding, not to more remote ones, unless the context or evident meaning of the statute requires a different construction 3. The modifiers reference is to the closest noun, absent a clear intention to the contrary a. In Re Forfeiture of 1982 Ford Bronco (p. 132): Using truck to pick up weed for friend was facilitation of transport of drugs b. State v. One 1990 Ford Pickup (p. 133): Having a little bit of cocaine in truck for personal use was not facilitation of transport of drugs D. Conjunctive and Disjunctive: or means items are treated separately or in the alternative E. Singular/Plural: Singular words include the plural and vice vers F. Masculine and Feminine: Masculine pronouns can include the feminine and neuter, and vice versa IV. Textual Canons: Focus of textual canons is on the legislatures enacted expression not on substantive policies A. How Different Interpretive Approaches Use Textual Canons 1. Textualists: use canons as a way to avoid finding ambiguity altogether, or to resolve it a. Ensures that consideration of extrinsic sources will be foreclosed in all but the rarest occasions b. Predictability: if the courts apply the canons in a predictable way and legislators know how the canons will be applied, it is more likely that legislators will draft text that can be interpreted to reflect the intended meaning 2. Intentionalist & Purposivist: if the court believes that the legislative history (or other evidence) can reliably reveal specific intent or at least the ultimate goal behind that words and phrases, then using the textual canons to resolve ambiguity might be too technical and insensitive to the true will of the legislature a. Rely on the canons somewhat because they reflect the reality of our speaking and writing, but not as much as textualists B. In Pari Materia: statutory language should be considered in light of the entire statute, not in isolation; similar texts or related statutes should be read harmoniously 1. Presumes internal consistency within a single statute, as well as coherence 2. The closer together the sections you're comparing are, the more cohesive they should be read a. Think of them on a continuum: arguments get weaker as you broaden them 13

C.

D.

E.

F.

G.

H.

i. Same section ii. Whole act iii. Whole law iv. Related statutes 1. The Whole Act Rule: a statute as its enacted all needs to be read together - all enacted at the same time so words probably are meant to mean the same thing 2. Related Statutes: two legislative acts that address the same subject are considered with reference to one another, so that they may be given harmonious effect a. The same word in related statutes should have the same meaning: The Rule Against Surplusage- all the words of a statute are supposed to be given meaning; not supposed to be read so that some parts are surplusage 1. Legislature put every word in the statute for a reason a. Every word must be given meaning b. Different words in the same statute, particularly those in a lost, cannot mean precisely the same thing (if they did, one word would be redundant) c. Does not apply when words are clearly inadvertently inserted or where they are repugnant to the rest of the statute Noscitur a Sociis: where broadly defined words are grouped with terms of specificity, the general words are interpreted as belonging to the same class as the narrowest in the list 1. The common thread tells you how to limit the definitions of each 2. Ex.: People v. Vasquez (p. 165): Obstruct, followed by resist, oppose, assault, beat or wound, did not mean lying to a police officer about your name because the other words indicated physical interference and lying is not physical Ejusdem Generis: when general words in a statute precede or follow the designation of specific things, the general words should be construed to include only objects similar in nature to the specific words. 1. Specific words indicate the class of items to which the statute applies, while the general words extend the statute to everything else in the identified class a. Distinguish: i. Noscitur tells how the list gives meaning to the items within it ii. Ejusdem tells how to find items outside the list given in the statute Expresio Unius Est Exclusio Alterius: the inclusion of one thing excludes the other 1. By including a list of specific items and not using a catchall, the legislature meant to exclude items not listed Provisos: clauses limiting another clause in a substantive provision 1. Limit the effect of a statutory provision or create an exception to a general rule 2. Provisos state exceptions to the general policy a law embodies, and should be strictly construed and interpreted so as not to destroy the remedial processes intended to be accomplished by the enactment Role of Components of a Bill not all language of a bill is codified in the statute 14

1. Enacting Clause a. Anything below it is law anything above it is not b. Must precede any section that is intended to have the force of law; only language following the enacting clause is technically enacted 2. Long Titles a. Starts with relating to; expresses the general purpose of the bill b. Comes before the enacting clause so its not law c. Usually tells where in the code the substantive provisions will be codified; identifies other statutes that will be affecte d. Helpful when there is some ambiguity to the statute to look to the title to see what the law was supposed to be about 3. Short Titles: after the enacting clause the Acts popular name, i.e., The College Fire Prevention Act, The Patriot Act, No Child Left Behind Act 4. Preambles/Purpose Clauses/Legislative Findings a. Identify the policy and considerations that led the legislature to enact the law b. A clause with factual information about what led the legislature to compose the bill c. May be used to clarify ambiguities, but they do not create rights that are not found in the statute, nor do they limit those actually given by the legislation 5. Purview a. The actual provisions of the law that will be divided up into sections (with headings or section titles) b. There is often a definitions section, rules, exceptions, defenses, enforcement, consequences, effective date V. Exceptions to Plain Meaning: If the plain meaning of the text is ambiguous, absurd, or has a scriveners error, the court will go beyond the text A. Absurdity (The Golden Rule Exception): when the plain meaning leads to an absurd result, the court must go beyond the plain meaning to see if other sources demonstrate that the absurd (but plain) meaning was not intended 1. Interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available B. Ambiguity: this entire course is about ambiguous statutes. C. Scriveners Error: when statutes contain an obvious clerical or typographical error, judges will correct the error 1. generally courts can deviate from the plain meaning rule in order to correct the error so they can interpret the statute as the legislature intended, rather than the way the statute is written 2. courts shouldnt use it just because they believe an error might have been made

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EXTRINSIC AIDS TO INTERPRETATION I. Statutory History: looking at how the statute got to be the way it is: evolution of a statute (kind of between textual and legislative history) A. "Dog didnt bark rule" or the "silver blaze" canon 1. The dog didnt bark because it was someone he knew 2. Congress is the dog: not barking is Congress not saying they're changing the cap 3. Changing it would be Congress saying hey we're changing this 4. They didnt bark because they thought they were keeping the law the same 5. If it looks like Congress has inadvertently made a major change to a settled law, better look at the legislative history to see if there was barking when they passed it II. Legislative History A. Record of deliberations surrounding (and usually prior to) the laws enactment B. Main Sources: created at three vetogates: 1. Hearings and reports - generated by committees 2. Sponsor statements and legislator colloquies - from floor debate 3. Conference reports - from two chambers settling on one version of the bill C. Other Sources: sometimes include: 1. Drafting documents - prepared before a bill was introduced in the legislature 2. Presidential veto or signing statements 3. Subsequent legislative history discussion of a bill after it as passed through the legislature or even been signed into law D. Hierarchy of Sources: Most to least influential 1. Committee reports - report of the substantive subject committee (environmental committee, agricultural committee, etc.) 2. Conference committee reports - refers to the bill that was actually passed; purports to speak for everyone since its representative of both houses 3. Sponsor statements they have to be truthful in representing the bill or their reputation will suffer 4. Colloquy on floor and in hearings 5. Drafting and deliberation history 6. Rejected proposals/failed amendments 7. Congressional record statements/debate 8. Statements of non-legislative drafters (lobbyists) 9. Presidential papers and signing statements - stronger if president vetoes 10. Subsequent history - law is passed and someone makes comments on the floor about it later (i.e., there was a lawsuit and they say what they meant by the bill after) 11. Committee mark-ups of bills 12. Communications between department officials and legislators 13. Early drafting history/drafting documents E. Factors of what makes some sources better than others: 1. Expertise sub-committee has a lot more expertise on their subject area than the legislature as a whole does, for example 2. How many people it speaks for 16

3. Is it believable or is it like used car salesman, saying things to get it passed F. Criteria for Using Legislative History 1. A moderate position on use says that it must be: 2. Readily available to the average lawyer a. Some sources that are usually not readily available: i. Early drafting histories, especially of bills written outside the legislature ii. Communications between department officials and legislators iii. Committee mark-ups of bills 3. Relevant to the precise interpretive question a. General intent - purpose of the statute 4. Reliable evidence of consensus within the legislature a. Why some sources are less reliable: i. Can't rely on the views of a legislative subgroup when the entire chamber viewed it differently ii. Sometimes unreliable because it was created too early in the process and doesnt reflect the bill according to the deals that were made to pass it iii. Some is produced too late in the process iv. May reflect the views of legislative outliers - members seeking to give the legislation a slant v. Legislators and lobbyists will try to plant remarks in reports because they know the court considers it 5. Tradeoff between reliability and usefulness a. Committee reports and sponsor statements confirming plain meaning vs. those that take positions on issues not clearly resolved by the text 6. Can be routinely discerned by interpreters at reasonable cost III. Statutory Stare Decisis A. Super-strong stare decisis rule applies to statutory interpretation cases 1. Absent compelling evidence that the courts initial interpretation was wrong, courts are very reluctant to overrule it 2. Asking a court to overturn a previous statutory interpretation decision that the legislature was silent on is like asking the court not only to overrule their previous decision, but also like asking them to amend the statute, because its like Congress said the previous interpretation was correct B. Legitimacy: keeping it consistent makes the decision more legitimate because it has a strong basis 1. Necessary to maintain predictability of the way the law will operate and reliance on outcomes of previous cases C. Efficiency or decision cost reduction: the cheapest way to resolve a case is the same way as last time; possibly less litigation if the parties know how a case will come out D. Common law stare decisis - decisions arent reversed just because we now think they're wrong, there has to be something else E. Statutory stare decisis in different levels of cases

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1. In constitutional decision making, there is less influence of stare decisis court as a descriptive matter is more willing, and should be, to overrule previous cases. Part of it is constitutional amendments are very difficult to get, so in practice is the only way to fix a mistake in a constitutional ruling is for the court to overrule it - its not 2. So for that same reason, statutory stare decisis has a stronger influence because it is pretty easy to amend them, and it is the legislature's job to supervise it 3. Courts shouldnt like having to interpret statutes, ideally they would be perfectly clear and not need interpretation, but they arent, so they should do it as little as possible. F. Order of influence of stare decisis: 1. Most: statutory 2. Middle: common law 3. Lowest: Constitutional IV. Legislative Acquiescence A. Post-Interpretive Legislative Silence: what Congress doesnt do can be as important as what it does do 1. If the court interprets a statute a certain way, and Congress doesnt do anything to indicate they disagree, we sometimes infer that congress has acquiesced to the courts interpretation 2. Assumption that legislative silence means acquiescence encourages legislators to follow judicial interpretations and to seek legislative correction of unintended or incorrect interpretations 3. Amendments: a proposed amendment that isn't enacted, or another bill that is enacted instead: the rejected proposal is meaningful too B. Legislative Inaction Following Judicial Interpretation 1. If the court interprets a statute and congress doesn't say anything about it, does that mean Congress agrees with the interpretation? a. Congress may not be aware of the interpretation b. Congress may not be able to agree on a way to fix the interpretation even though they dont agree with it c. They may have too many other things to worry about C. Legislative Inaction Following Executive Interpretation V. The Role of the Common Law A. A few ways statutes and common law interact 1. Common law can provide meaning for undefined words in a statute 2. Common law can even influence the meaning of words that are defined in the statute 3. Filling in gaps in a statute: our statutes are typically not comprehensive - it doesn't cover every question. Can look to common law to fill in gaps unprovided for in the statute 4. Provides fodder for substantive canons B. Common law style of thinking of different than the way statutes work

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1. Common law is cases with particular facts, judges find results from the previous cases, and a rule is derived from the cases as a body. What is authoritative is the reason the judges found the result they did. 2. A statute on the other hand is top-down, all at once: the words themselves are the law, and they apply to every set of facts in the universe. 3. Whereas common law is created by judges, so they must at least kind of like it, statutes are created by legislature, and can create some tension between the two branches. 4. What the courts have tended to do with these statutes that are kind of invading the common law is to treat them narrowly, kind of cordon them off and give them as little effect as possible. C. Statutes in Derogation of the Common Law (Anti-Legislative Canon) 1. Kind of a judge self-serving rule 2. Various meanings a. Any statute that changes the common law b. Statute that removes a right c. Statute that creates a new liability - least plausible D. Remedial Statutes 1. Broadly construed a. Any statute that changes the common law b. Creates a new remedy for injured people (and a new liability for others) SUBSTANTIVE CANONS I. Overview: substantive canons give guidance on how to glean the meaning of the statute, not just the textual expression A. See list, EFG pp. 392-97 B. Textual canons are meant to be value-neutral; kind of in the statute, just putting together the pieces of a statute C. Not so with the substantive canons, which take a stand on value D. Purpose & Use: 1. Preference estimation: if you can't tell what you're supposed to do, do what you usually (ham sandwich& diet sprite) - just fill in gaps with the most likely congressional intent 2. Overcomes a legislative disfunction (think interest group dynamics) 3. Substitute for other sources: substitute for judges' own preferences, or substitute for legislative history. This gives you more restraint. If the alternative is the judge imposes his or her own policy preferences, this might enable that. Kind of questionable. 4. Quasi-constitutional Law: can read delegation narrowly to avoid unconstitutional interpretations II. Constitutional Avoidance A. Every state or federal statue should be construed so that it does not violate the Constitution (and the states constitution, if its a state statute) 1. Courts should decide constitutional issues only when necessary

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a. If the case can be decided on one of two grounds, one of which involves a constitutional question, and the other involves a question of statutory construction or general law, the court will only decide the latter b. Courts can avoid the plain meaning of the text when that plain meaning raises constitutional issues that would be avoided by another fair interpretation c. Only applies when there are at least two competing interpretations that are fair constructions of the statute B. Two specific constitutional requirements that directly affect interpretation: 1. Statutes must satisfy due process by providing notice 2. Statutes cannot constitute ex post facto laws C. Ex.: US v. Marshall 1. Weighing LSD without considering the concentration may have bizarre results 2. Generally culpability is measured by how many doses you have 3. Kingpin may have 100 hits that weigh almost nothing 4. Street level dealer may have 100 hits that weigh a whole lot more because its on its carrier (blotter paper or whatever) 5. This may reverse the roles of the distribution chain, where kingpins, who should be punished more, get less penalty than the street level dealer 6. Arbitrary results 7. Potential unconstitutional result - maybe interpret the statute creatively to avoid that III. The Rule of Lenity A. Criminal statutes should be interpreted narrowly 1. Individuals should not languish in prison unless the legislature has clearly articulated precisely what constitutes a crime a. Due Process requires that criminal statutes give fair warning of the scope of a criminal law b. A person can be punished for engaging in conduct that a reasonable person could not know was illegal 2. Two conditions precedent to applying the rule of lenity a. Applies only when the statute has a penal component i. Not only criminal can apply when a civil statute has a penal aspect to it (e.g., taxes) b. Applies not if the statute is ambiguous only applies if the ambiguity remains after the court has examined other sources including legislative history i. Does not mean the tie goes to the runner 3. Where two reasonable interpretations of a penal statute exist, one that would convict and one that wouldnt, or one that would give a harsher sentence, a court must adopt the interpretation that favors the defendant IV. Federal Preemption of State Law A. Supremacy Clause: federal law shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding. 20

B.

C.

D.

E.

1. Federal law controls in the case of any conflict 2. Delicate balance between state and federal interests 3. In analyzing whether a federal statute preempts state law, courts often look beyond the text of the federal statute or regulation and turn immediately to examine the enacting Congress's intent or purpose 4. Federal preemption can be express or implied 5. Preemption doctrine gives primacy to purpose and intent rather than text Three types of federal preemption, one express, two implied 1. Express Preemption - turns on the existence of a statute expressly preemption state law 2. Implied - where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law 3. Implied - where federal law conflicts with state law Express 1. Statute includes a preemption clause 2. First step in analysis is to determine the scope and meaning of the clause Implied 1. Field Preemption a. When federal statutes are so comprehensive that they occupy an entire field 2. Conflict Preemption: state law that conflicts with federal law is preempted a. When there is a conflict between federal and state law such that either: i. It is impossible for a party to comply with both laws, or ii. State laws "stands as an obstacle to the accomplishment" of federal objectives Wyeth v. Levine (U.S. 2009) p. 424 1. Whether the FDA's approvals provide Wyeth with a complete defense to Levines tort claims 2. Whether the FDA's drug labeling judgments preempt state law product liability claims presented on the theory that different labeling judgments were necessary to make drugs reasonably safe for use 3. Two separate preemption arguments: a. It would have been impossible for company to comply with state-law duty to modify Phenergan's labeling without violating federal law b. Recognition of Levine's state tort action creates an unacceptable obstacle to the accomplishment and execution of the full purposes and objectives of Congress, because it substitutes a lay jury's decision about drug labeling for the expert judgment of the FDA 4. Two cornerstones of preemption jurisprudence a. The purpose of Congress is the ultimate touchstone in every preemption case b. In all preemption cases, and particularly those in which Congress has legislated in a field which the states have traditionally occupied, we start with the assumption that the historic police powers of the states were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress 21

F. Williamson v. Mazda (U.S. 2011) 1. Three subsidiary questions: a. Whether the statute's express preemption provision preempted that state tort suit b. The saving clause at least removes tort actions from the scope of the express preemption clause, but does it do more? Does it foreclose or limit the operation of ordinary preemption principles insofar as those principles instruct us to read federal statutes as preempting state laws (including common-law standards) that actually conflict with the federal statutes? c. Whether, in fact, the state tort action conflicts with the federal regulation? 2. Savings Clause: compliance with a federal standard does not exempt from common law liability a. Problem is Congress has both the preemption and savings clauses in the same statute: they kind of conflict b. Normally they kind of cancel each other out c. The savings clause does not foreclose or limit the operation of ordinary preemption principles, grounded in longstanding precedent d. In implied preemption cases, we usually find the implication where the state and federal laws can't both be complied with e. Two ways they can be in conflict: i. Impossibility: can't comply with both ii. Unacceptable obstacle to the accomplishment and execution of the purposes and objectives of Congress V. Federalism Canons A. Clear Statement Rule 1. Political safeguards of federalism: a. Provides statutory protection for the snoozing constitutional values of the 10th and 11th protect states rights b. Competing factors: i. States are good lobbyists and have influence on federal political process, will protect federalism values ii. Judicial safeguards of federalism: court generally upholds federal law 2. If legislature intends for states to be regulated by a statute, they have to make it super clear in the statute 3. This is a big detour for federal law: it detours around the state as sovereign congress has to make a clear statement that the states are regulated 4. Difference between clear statement rule and presumption against preemption a. Clear statement is like a sledgehammer canon b. Presumption against preemption is like a fly swatter c. Thing about clear statement rule is that a clear text will beat the clear statement rule - they have to be clear in the text of the law that the statement is covered

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d. Presumption against preemption can be beaten by all the regular interpretation stuff, text, legislative purpose, etc. B. Presumption Against Preemption good or bad? See JH p. 425, fn 3 1. Wyeth argued that its only in areas of traditional state concern or regulation where this applies 2. Majority disagrees: presumption applies whether its a traditional area or not 3. Dissenters, Alito et al, agree with Wyeth that preemption should not apply in a case like this 4. Right now they tend not to find that federal law impliedly preempts state law VI. Substantive Canons in State Courts A. Some dont make sense outside of federal context: interfering with Presidential powers, etc. B. State courts still have a constitutional avoidance doctrine C. Often in preemption disputes, its state tort law that is being preempted. In that case, often its liberals that dont want the preemption because they are pro tort, and conservatives that do want the preemption because they want to restrict tort cases in favor of big businesses VII. Conflicting Statutes A. Two ways statutes can be in conflict 1. Two statutes both seem to apply to a particular circumstance but they conflict with each other a. Legislatures are presumed to know all existing statutes, but sometimes it seems like they enacted a new statute without taking into account the existence or scope of a previous statute b. Courts try to interpret statutes so a conflict doesnt exist, usually by relying on the textual canons or on extrinsic or policy-based sources c. Sometimes they can't interpret away a conflict and have to decide which statute controls 2. Statute seems to conflict with settles an significant policies: mainly federalism and foreign relations a. Courts look closely at federal statutes that seem to intrude into matters that are traditionally state concerns b. This is a specific type of the general problem of federal statutes that appear to conflict with important interests like sovereign immunity B. The Last-Enacted Rule 1. If the court can't interpret two statutes so that a conflict is avoided: a. Specific statutes control over general ones: a statute that specifically addresses a topic should trump a more generalized one b. later-enacted statutes control over earlier ones: an earlier statute should be read in light of, and subject to, a later one C. Implied Repeal 1. Courts disfavor repeal by implication because it conflicts with the presumption that the legislature knew about existing statutes, so it would have explicitly expressed its intent to repeal one 2. Courts are very reluctant to hold that a later-enacted statute impliedly repeals an earlier one unless they first find that: 23

a. The two statutes are in irreconcilable conflict or b. That the later enacted statute covers the whole subject of the earlier one and is clearly intended as a substitute VIII. Effective Dates & Retroactivity A. Overview 1. Generally statutes are presumed to have only prospective effect 2. No retroactive criminal liability; retroactive civil legislation is constitutionally ok 3. Criminal only a. Ex post facto clause of the Constitution - limitation on retroactive criminal liability. Something can't be made a crime after it has been done. b. Doesnt mean there's nothing in the constitution to protect against retroactive civil liability. 4. Civil a. When you have civil laws that are retroactive, or it doesnt say whether they are, we presume they are not: presumption against retroactivity b. At one time, there were serious constitutional limits on retroactive civil liability i. Contracts clause: binds only the states, not the federal government: no state shall impair the obligation of contracts ii. Takings clause iii. Today there really isn't any protection against abrogating contracts or tort liability B. Provisions: clause in a statute that says when it starts having effect 1. Federal rule: law becomes effective when the President signs it a. This is default - if it doesn't say, this is when b. Congress can choose a different effective date 2. Texas: usually the statute says Sept. 1, but if it doesnt, its 90 days after the close of the session a. If they want a law to take effect immediately when they pass it, they have to have a 2/3 vote in favor of the law 3. Normal sequence of events: a. Bad conduct b. Law regulating the conduct comes into effect c. Case asks whether the law covers when the conduct occurred C. Retroactivity: attaching new legal consequences to past conduct - legislature needs to be clear thats what it intended to do 1. General rule: statues are prospective only - dont govern past conduct 2. If a statute is silent regarding coverage, its not retroactive D. Special Cases 1. Grandfathering: saying "existing uses are still ok" a. Can get kind of a perverse legislative effect 2. Sex offender registration laws:

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a. Offense in the past - maybe 20 years ago; there were criminal consequence fulfilled by the defendant b. Law takes effect; now there is a duty to register c. Its not retroactive because it doesnt create a criminal liability - their presence in the category of "sex offender" require them to register as a civil liability; only their failure to register creates a criminal liability E. Procedural Retroactivity 1. Generally no presumption against retroactivity when a procedural rule is changed 2. Rule is effective even if you already filed your case before the new rule came into effect 3. Not really retroactive but does change existing rules from when you entered the court system F. Mere Clarification 1. When the legislature passed this law, they said it was meant to be merely clarifying to the existing law 2. But it can't be a mere clarification because it would change all of the cases that had been decided under what the court thought the law meant 3. If it has the effect of changing all of the already decided cases, the court says its actually an amendment because the court is the interpreter of the law 4. If you change the law because of how the court interpreted it, you must be making an amendment because once the court interprets is a certain way, thats now essentially written into the statute 5. Mere clarifications are retroactive because theyre not changing anything 6. Ex.: Carrisales (1999): a. If the Court says the law didnt mean liability for the harasser, then the legislature clarifies the statute to say yes there is liability for the harasser, the court says this isn't a clarification but a change to the law because the court is the interpreter of the law b. Underlying event: co-worker harassment, 1998 c. Court says no liability for the individual co-worker for engaging in sexual harassment (employer, not coworker) d. 2000: Amendment: yes there is liability for the individual e. Court says this is an amendment, not a mere clarification, because they had already interpreted it to not create liability for the individual employee ADMINISTRATIVE AGENCIES I. Congressional Methods of Enforcement A. Criminal cases B. Agency civil enforcement: agency can bring cases against private entities C. Private lawsuits - for any of the norms, can allow private parties who are injured by the violation to bring a case D. State law or federal law: can have a state negligence per se suit based on the federal substantive law E. Determining which methods of enforcement are available 25

Criminal Penalties

Agency Civil Enforcement

Private Right of Action

1. Congress tells us, usually - they say what instruments they want to use 2. Sometimes, they dont - sometimes they're silent about whether there is private enforcement 3. When that happens, its possible for the court to find an implied private right of action Pros Cons - Send a strong message that the regulation will be - Indictment for a company is a death enforced sentence - Good general deterrent: punishment is stronger - jail - Harder to win criminal cases - Courts time is serious less likely to find companies/people criminally liable - Risk of political influence on agency - Budgetary issues - if Congress doesnt like what an agency is doing, it will cut its enforcement budget - Capacity constraints: DOJ can only prosecute so many people - Expertise agency knows the most about subject - Can be politically motivated - Uniformity in interpreting the statutes - Under-enforcement can occur because - Big picture view: in a private lawsuit, the court only the scope of agency enforcement is sees the particular instance generally huge when they do it - Government has resources to do investigations, spreads the cost - Enforces the intent of the enacting Congress - Counter-majoritarian: the political weight of both the agency and Congress factors into the Court's decision when the Court is on the opposite side of the aisle from the other branches - People may be more personally invested because - Potential for a private suit to result in they have been wronged, whereas agencies may not consequences to a violating company that as aggressively pursue a case are disproportionate to the wrong done - Can have class action to make it economical to - Small stakes problem - underpursue a small sum enforcement Compensation of injured parties redressability - Over-enforcement: people can all bring - No political influence a bunch of individual suits for similar violations

II. Agency Authority to Regulate A. When Congress makes new statutes, an Administrative Agency is usually the immediate recipient of the laws, and tell the public and the Courts how they apply 1. Legislature says: agency, do something about acid rain (or whatever) 2. Agency has to figure out how much acid is safe, and what to do if theres more than the safe level 3. Agency makes a whole bunch of rules and regulations a. Some kinds of laws dont go to agencies: usually criminal law, family law 26

B. Bringing agencies into the picture complicates things 1. Two ways agencies are relevant a. Agencies as enforcers of statutes i. Enforcement: who is in charge of enforcing a substantive norm of conduct as per the statutes? b. Agencies as interpreters of statutes III. Private Rights of Action A. Implied Private Right of Action 1. Sometimes in the presence of congressional silence on whether private enforcement is available, courts will allow private rights of action a. A hundred years ago, courts would nearly always allow a private suit to enforce regulations b. Post New Deal: private enforcement becomes problematic - there are a whole lot more agencies (lots came into existence during new deal) c. Through the 60s, Courts were still very willing to imply a private right of action even when Congress was silent d. Private rights of action are almost never implied today IV. Enforcement of Statutory Schemes A. Congress has a substantive norm, and puts an agency in charge of enforcing it 1. The idea is that the agency will do ok, but we could get even better enforcement if private citizens could enforce it too 2. Just because the court believes it would be good to have a private remedy doesnt mean they can provide it - it could be infringing on Congress' power to legislate 3. Enumerated Powers: a. Congress- Article I legislates b. President - Article II executes c. Courts - Article III interprets d. Agencies do all three i. CRF - rules with the force of law that were not passed by Congress ii. Art I - they legislate with regulations iii. Art II - executive power to enforce iv. Art III adjudicate V. Agency Control A. President is most in control of the agencies - he hires and fires them B. Distinction between "executive agencies" and "cabinet departments" and "independent agencies" 1. Independent agencies have multi-member leadership - a commission rather than a director a. Staggered appointment: one position opens up every few years b. President can't fire them at will for no reason 2. Legislative veto: congress can only act through bicameralism and presentment to the President- can't reserve power to one house or the other while delegating the rest to agencies. Would be awesome for Congress but itss unconstitutional. (INS v. Chadha) 27

3. When you have unified government (President, House and Senate all the same party), oversight doesnt really work C. REINS Act: Proposed bill on agency regulatory power 1. Would strip the power of the agencies to pass major regulations 2. Instead, the agency would have to propose legislation and it would not take effect until Congress passes it 3. Would be constitutional because it follows bicameralism and presentment clause 4. But its not going anywhere because the President will veto it D. Administrative Procedure Act 1. Sec. 702: anyone aggrieved by an agency action has a right to judicial review a. Courts are putting some leash on the agencies- they have to follow the law at least in some approximation b. The agency can't have acted in an arbitrary and capricious way (so there is no way they can have zero justification) 2. Sec. 706: three types of things agencies do: a. Determinations of fact - mostly reviewed merely for substantial evidence (706(2)(e)) i. Not de novo - court doesnt ask what the actual truth of the matter is b. Determinations of law/statutory interpretation: construing what the statute the regulation is based on means i. There is deference - often, not always, Chevron deference. c. Policy or discretion: congress tells the agency to deal with the problem how it thinks is best, so the agency has discretion in its policy choices. d. Reviewed to see if the agency's decision was arbitrary or capricious. E. FCC v. Fox: application of arbitrary and capricious standard 1. Agency policy under review: a. FCC's new indecency policy - used to be that a "fleeting:" expletive wasnt indecent b. Majority says this is not arbitrary and capricious i. Scalia wants agencies to be more like courts - have to stick with a policy once they have decided on it ii. If the change is really a disruptive one, you need more explanation iii. So when changing policies, agencies dont have to give as much explanation as a court would, dont even have to show that there was some change in the world to warrant it c. Breyer in dissent wants more than that - not just that this new policy is ok, we need to know why you needed to change from the old one VI. Administrative Rulemaking A. Agencies can fill the gaps in statutes in many ways: 1. Adjudication 2. Legislative rulemaking 3. Non-legislative rulemaking B. Adjudication 28

VII.

1. Formal: like a civil trial in front of an administrative law judge 2. Informal: two requirements a. Agency must decide the issue promptly and b. Must notify the affected party of its decision and provide a brief statement of the reasons for denial C. Legislative Rulemaking 1. Formal: just like formal adjudication, but at the end, the agency promulgates a regulation that applies broadly rather than an administrative opinion that binds only the parties to it 2. Informal (aka notice-and-comment): a. Agency publishes notice of a proposed regulation in the Federal Register and solicits comments from the public about the regulation b. Agency collects and responds to comments by publishing both c. At the end, the agency promulgates a regulation D. Non-Legislative Rulemaking 1. Agency may respond to a regulated entity's question about the meaning of a regulation or statute (is not an adjudication) 2. May issue enforcement guidelines or publish procedural and policy manuals 3. Because notice-and-comment rulemaking requires agencies to jump through hoops, they often opt for non-legislative rulemaking instead (sometimes even if the other kind is statutorily mandated) Deference to Agency Interpretation A. Deference: Chevron analysis - strong deference to the agency 1. Policy at issue: EPA's construction of the term "Stationary source" in the clean air act. - whether the agency is allowed to have a "stationary bubble" definition a. No express deference, and a change of policy - and the agency still wins 2. Implicit delegation of authority to the agency a. Justification is: i. Judges arent experts in the field - agencies are ii. This is a technical and complex question iii. Uniformity of policy - agency is nationwide interpretation iv. As a formal matter, congress may have elevated this power in its delegation v. Courts arent electorally responsive or accountable - agencies may be (i.e. the public could not reelect the person that appointed the agency administration if they dont like the results vi. Delegation: any lack of clarity constitutes an implicit delegation B. Mechanics: The Chevron Two-Step Process 1. Chevron Step Zero- is this the kind of agency product we are willing to defer to?

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a. Need to decide whether the agency policy or decision gets Chevron or Skidmore level of deference based on the force of law of the agency position b. Only agency interpretations that carry the force of law get Chevron deference c. An agency action has force of law when Congress has delegated legislative power to the agency and the agency intended to exercise that power when it acts d. Interpretations with force of law include formal actions (adjudication, rulemaking) and notice and comment rulemaking e. Opinion letters, policy statements, agency manuals, enforcement guidelines do not 2. If the position gets deference, then do Chevron analysis strong deference a. Chevron Step One: Has Congress directly spoken to the precise question at issue? i. To determine whether Congress has specifically addressed the question at issue: One. Court should not confine itself to examining a particular statutory provision in isolation the meaning or certain words may only be evident in context Two. Meaning of one statute may be affected by other acts, particularly where Congress has spoken more specifically to the issue Three. Also guided by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency ii. If yes, then need to enforce Congress intent, agency doesnt matter iii. If no, then step 2 b. Chevron Step Two: If the court determines congress hasnt directly addressed the precise question: i. Where the statute is silent or ambiguous the court will look to see if the agency's interpretation is reasonable ii. Court doesn't impose its own construction 3. If the agency position is does not get Chevron deference, Skidmore analysis: a. Court evaluates the position for its persuasive value b. Factors that make the agencys position persuasive or not i. Is it thought out? ii. Is it long standing? iii. Are they relying on special expertise? iv. How did they promulgate the rule? v. Is it a major change from a different position?

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