LEGISLATION AND THE COURTS

  1. An Introduction to Legislation
  2. Introductory notes
  3. What is law?
  4. Rules of conduct enforced through legislation, odes and common law
  5. Black’s law dictionary definition:

Either what people have been doing or what courts say they have been doing (law of torts); or

Through custom/usage: wrinkles have been ironed out; people have consented to be governed by these rules

  1. Statutory Law
  2. Just meet and talk with the King and then declare what the common law is
  3. It wasn’t used much b/c there was a mistrust of gov’t, it was difficult to get things done and activity was built on demand for change and Industrial Revolution
  4. Justify Legislation
  5. As a science b/c research can be applied
  6. As a democracy
  7. Okla.
  8. Adopted codes early on which were based on the Field code
  9. Then went to criminal code based on Dakotas’ laws and civil code based on the law of Kansas
  10. Amendments to bills: 3 types
  11. Perfecting
  12. Substitute (replace entire portions)
  13. Killer: designed to get the bill defeated
  1. The story of the Civil Right Act of 1964 and the procedures of statute creation
  2. Obstacles to civil rights legislation
  3. Four areas of concern

Discrimination in public accommodations

Desegregation of public schools

Fair employment

Discrimination by recipients of federal funds

  1. Obstacles: 3 reasons why it might not have passed

Ambivalence of both political parties

Uncertain commitment of president and vice-president

Obstacles in Congress

  1. Passage of a bill in the House (see chart on p. 29)
  2. Speaker of the house refers bill to committee

Civil rights falls under the Judiciary Committee

  1. Chairman of the committee refers it to a subcommittee

Here, it was referred to a subcommittee that usually does antitrust matter b/c of a favorable composition

  1. Subcommittee holds hearings and then “marks up” the bill

Mark up is done to achieve consensus on all parts of the bill

  1. Subcommittee reports the bill to the full Judiciary Committee
  2. Bill is redrafted by committee
  3. Redraft is sent to full house
  4. Then sent to rules committee

Each bill sent to the House must pass through the Rules Committee where a resolution governing floor debate is prepared

This stage often amounts to de novo consideration of the bill and provides another opportunity to kill it before it reaches the House

Attempts to get a bill stuck in Rules out:

  • After 30 days, a petition signed by majority can remove from committee,
  • Each Wednesday the Speaker can call on chairman to inquire whether the chairman wishes to call for a vote any bill previously reported out of committee
  • A rule allows 3 members of the committee to request that the chairman call a meeting to consider the bill and provides that if one is not scheduled, a majority of the committee may call one
  • Process for bill called up from the floor (6 steps)

House debates and votes on bill’s rules

If accepted, the body will resolve into the “Committee of the Whole House on the State of the Union”

Amendments will be offered, debated and accepted or rejected by unrecorded vote

Members then resume sitting as the House and if requested will take recorded votes on amendments

A minority party member will then be recognized to offer a motion to recommit the bill to committee

The House will vote on the bill, as amended by the Committee of the Whole

  1. Passage in the Senate (see chart on p.29)
  2. Read for the 1st time
  3. If no objection, read for 2nd time
  4. Referred to committee, unless majority votes to place it on the calendar
  5. Committee considers bill (may be amended or killed)
  6. Placed on Senate calendar
  7. Call up bill for consideration
  8. Debate on Senate floor (unlimited debate rules)
  9. 3rd reading, followed by a vote
  1. The Griggs cases
  2. Griggs v. Duke Power (4th Cir. Decision)

Action brought by black EE of Duke power who claimed policy of requiring a h.s diploma fro a promotion violated Title VII

3 groups of plaintiffs: hired before 1955 w/o diplomas, hired after 1955 w/o diploma and those who had diplomas and had been promoted

Claims of those hired/promoted were dismissed as moot

Before 1955/w/o diplomas: policy violated Title VI

Hired after/w/o diplomas: legitimate policy

  • Policy was not enacted as a response to the CRA
  • It had a legitimate business purpose
  • The legislative history suggested that the act was not intended to eliminate legitimate testing schemes

Dissent argued that the policy was merely a way to continue to discriminate against blacks and that you should look at the effect of the actions not the intent of the legislature

Court went against the canon of construction giving great weight to the agency’s interpretation in favor of allowing legislative history to trump it.

  1. Griggs v. Duke Power (S.C.t decision)

Reversed the lower court and held that the testing scheme was unlawful

Court held: facially neutral employment practice that was not demonstrably discriminatory in purpose was unlawful if it had the effect of excluding a group on the basis of race and without a strict showing of business necessity

This decision went against the text and amendments and invoked the “spirit” of the law

  1. Descriptive and Normative Theories of Legislation (theories of legal process)
  2. Proceduralist theories
  3. Vetogates: the congressional process creates many gates that a bill must pass through where it can be killed rather than moved along to the next stage

Processes to use:

  • kill the bill in committee
  • if committee approval can’t be avoided, stop the bill before full chamber consideration
  • if full chamber consideration occurs, kill the bill there (filibustering, amending it to death or outright defeat)
  • if 1 chamber has approved the bill, exploit the veto opportunities in the process of the other chamber to prevent the 2nd chamber from passing an identical measure
  • if the other chamber passes a similar but not identical bill, amend or defeat it at the conference committee stage
  • if all else fails, persuade the President to veto it and then work against any congressional effort to override the veto

Descriptive: means that determined minorities can often kill legislation or in the alternative, maim it.

Normative: tells statutory interpreters to whom they should pay attention if they consult legislative history

Theory says that legislation should be hard to make b/c that makes it better or more deliberative; deliberation is a good independent value

  1. Liberal theory: statutes should be hard to enact

Belief that requirements of bicameral approval and presentment to the President will prevent most social and economic problems from generating legislation

Development of committees and filibusters reinforces that tendency

Consistent with favoring private autonomy and free economic markets and generally disfavoring government regulation

  1. Madisonian theory: the deliberate value of process

Starts with the propensity of human society to contain factions or citizens who are united and actuated by some common impulse or passion or interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community

Since the cause of factions can’t be eradicated, the best strategy is to contain its effects (representative gov’t can do this)

Does so with the “checks and balances” system

Normative: trust in the system

Idea adopted by Hart and Sacks that the best criterion of sound legislation is whether it is the product of a sound process of enactment (process that is informed, deliberative and efficient)

Legal process theories: emphasize deliberation as an achievable ideal in our representative democracy

  1. Pluralism and Interest Group Theories of Legislation
  2. Pluralism: importance of groups in legislation

Propositions and definitions

Citizens organize into groups for political action (interest groups

Interest group politics results in “pluralism”: the spreading of political power across many political actors

Free-riders: people won’t contribute when they get the benefits w/o it anyway

Log-rolling: make deals and not really compete against each other

Agencies charged with regulation become the tool for deciding how the law will work (industries capture the agency)

Politics can be conceptualized as the process by which conflicting interest-group desires are resolved

  • Assumes that the legislature will enact those laws which the majority of interest groups favor
  • Very different from the Madisonian idea that politicians will act in the best interest of the public
  1. Public Choice Theory: A transactional view of the legislative process

Defined as: the economic study of nonmarket decision making or simply the application of economics to political science

The basic assumption is that taxes, subsidies, regulations and other political instruments are used to raise the welfare of more influential pressure groups

Man is an egotistical, economical, maximizer (does what’s in his best interest)

“Arrow’s Paradox”: theorem: show me legislation that the product of will and I will show you something that is random; possible outcomes depends upon who sets up pair wise voting (animal/children example)

Demand patterns in political markets: Organized groups tend to provide more information to legislators and tend to frame the issue more clearly

Degree and nature of interest group organization is determined by the perceived incidence of costs and benefits from a specified policy (demand patterns)

  • Programs that have distributed costs and benefits will have little organized group activity
  • Programs with general benefits and specific taxation will have better organized opposition
  • Programs with concentrated benefits but distributed costs tend to have strong interest group support and weak opposition
  • Programs with concentrated benefits and costs tend to have continuous organized conflict

Supply patterns

  • In cases of distributed costs and benefits, legislators will favor no bill or symbolic action b/c there in no strong pressure form organized interest
  • In cases of distributed benefits and concentrated costs, legislators will be opposed by organized interest groups and the best solution is to draft an ambiguous bill and delegate responsibility to an agency; this will also produce rent-seeking
  • In cases of concentrated benefits and distributed costs, legislators will distribute subsides and power to the organized beneficiaries (costs are allocated to an uninformed public)
  • In cases of concentrated benefits and concentrated costs, legislators will favor no bill or delegation to agency b/c any policy choice will incur the wrath of opposing interest groups
  1. Criticism of Pluralist/Public Choice Vision
  2. Dynamic nature: elected officials rather then interest groups play the key rolls is forming policy

Garbage can theory: salient problems, possible solutions and choices all exist as one in the can; those that are resolved with good outcomes and those that go away is completely by chance.

  1. Can’t deny the importance of self-interest
  2. Interest groups have a disproportionate impact
  3. Republicanism: civic choice, community is most important, private preferences are secondary and search for morally correct answers
  1. Institutional Theories of Legislation
  2. Characterized by 3 specific assumptions (all of these assume that legislators know why/can communicate why they voted the way that they did)

Political outcomes are dependent on the actions of several decision makers and each decision maker is aware of this interdependence

Political players are goal oriented

Institutions are the context in which political interdependence is realized and people’s goals are pursued

  • Assumes also that legislators think about how person implementing the statute will react
  • The situation in Griggs can be looked at as an anticipated response game; in deciding the case, the 4th circuit thought about how the Supreme Court would react to its decision; these should have considered such things as the new political climate in Washington and the “broader political currents” that would effect how the Supreme Court looked at the cases
  1. Title VII: Interpretive issues and political theories
  2. Supreme Court’s decision in Griggs
  3. Title VII: focused on intentional discrimination and set up cumbersome administrative apparatus designed to minimize the role of the EEOC in the statute’s development
  4. EEOC implementation of the statute was different than original purpose: EEOC interpreted the statute to bar ER practices which prove to have a demonstrable racial effect

They felt this better served statutory purpose

  1. When Griggs was appealed to the S.Ct. the Court held that:

A facially neutral employment practice that was not demonstrably discriminatory in purpose was nonetheless unlawful if had the effect of excluding a group on the basis of race and without a strict showing of business necessity

“congress directed the thrust at the consequences of employment practices”

  1. 3 different dynamics enabled Title VII’s policy to shift radically to the left b/t 1964 and 1971:

Internal politics of the EEOC and the S.Ct.

Shift to the left of congressional preferences

Congress didn’t override so it must be ok

  1. Affirmative Action (Weber)
  2. In Weber, the court held that voluntary affirmative action programs were not prohibited by Title VII
  3. Court decided that based on legislative history, Congress did not intend to prohibit the private sector from taking effective steps to accomplish the goal (Congress wanted to avoid undue regulation of private businesses)
  4. Use the word “require” rather than “require or permit” means that they did not intend to limit traditional business freedom
  5. Brennan: purpose

Even though the literal words would prohibit, the company’s actions were in compliance with the “spirit” of the act

Policy was consistent with legislative history

Policy anticipated by the enactment of various EEOC regulations which was initiated by a private company to combat wide societal discrimination

Basically thought the policy had a good motive

Starts by looking at Holy Trinity and fought the words of the text which went against him

  1. Blackmun

Took exception to the strange reading of legislative history

Voted with the majority b/c he felt that the CRA was tough on ER and wanted to help them

Leaves himself open to reverse this if the facts change

Admits that when it was enacted Congress probably intended to prohibit this type of activity, but other factors now override this.

  1. Rhenquist dissent: intent

argued that Title VII was enacted to stop this exact type of discrimination;

Congress intended that no racial discrimination take place;

Stated that to find the intent of Congress you look to: words of the statute, then to legislative history and then if all else fails, look to the “spirit” of the act.

Follows a transactional approach

  1. All three opinions present different NORMATIVE visions of the Court’s role in statutory interpretation

One way to look at it is to say that the Court should find the original intent of the statute; many feel that it doing so here, the Court changed the meaning of the statute

Courts often to look to legislative history to find this intent; most often the Committee reports are used, but here the Court looks instead to statements made b/t the bill’s authors

  1. Instead of intent, could interpret the statute to “advance the policy that furnishes the best political justification for the statute”
  1. Johnson v. Transportation Agency
  2. Agency had passed over a male applicant and given the job to a female applicant; he sued claiming violations of Title VII; ER claimed that they only used sex as one factor and were permitted to do so b/c of “manifest imbalance” that they were attempting to remedy
  3. Justice Stevens argues that while this interpretation of the act was not what Congress had originally intended, it was a necessary modification
  4. Justice O’Connor looks to strike a balance b/t the intent of the act and the goal of eliminating discrimination
  5. Dissent states that permitting affirmative action guarantees that race will be used as a factor in deciding employment issues; would at the very least limit them to private ER; should not assume just b/c Congress has not acted to change the statute that the decision in Weber was correct (normative point)
  1. Griggs revisited
  2. Wards Cove: court stated that prima facie case of disparate impact is not made out unless the EE shows that the bad numbers are out of line with the number of “qualified” minority applicants for the positions in question; EE must also point to the specific practice that caused the disparity; ER must show that they were justified business practices
  3. Civil Rights Act of 1991

Leaves definition of business necessity in disparate impact cases to pre-Wards Cove cases

Required EE to show which ER practice caused the disparate impact

Confirmed that bad numbers alone are not enough

Reiterated that Title VII does not require quotas

II.Theories of Statutory Interpretation

  1. From Eclecticism to Systematic Theory (1892-1938)
  2. Early American courts generally proclaimed their fidelity to legislative intent but would consider as evidence of such intent the statute’s text, canons of statutory construction, the common law, the circumstances of enactment, principles of equity and so forth.
  3. Hart and Sacks: The legal process ( from Heydon’s case)
  4. The mischief rule

Looks at what was the common law before making the statute

Looks to see what the mischief and defect for which the common law did not provide

Looks to see what remedy Parliament hath resolved and appointed to cure the disease of the commonwealth

Looks at the true reason of the remedy

  1. The golden rule

It is the role of judges to declare the expression of the legislature and not to legislate even if the result is not agreeable to the judge

Do what the text says unless the result would be absurd

  1. The Literal rule

Basically the same as the Plain Meaning rule

  1. Hermeneutics
  2. Application of common sense to the reading of the statute

b.Meaning can only be given to the statute through interpretation

4. Holy Trinity Church v. United States