Brudney’s office hours are Tuesday 4-5 and Wednesday . He’s in Room 313.
Class participation: he’ll call on people alphabetically. He’ll get around to everybody more than once. He takes account of class participation as a part of your final grade.
The exam is open-book. He allows computers, but with modifications.
About the casebook
It has stuff other than cases. The cases themselves are often long and unedited compared to the cases you see in other classes.
Focus much less on the holding than on the methodological issues of statutory interpretation.
At the end of the course, you don’t have to understand the substantive law we’ll go over during the course. Those statutes are vehicles we’ll use to study the statutory process.
The additional materials contain some extra cases, but mostly Congressional hearings, floor debates, committee reports, and so on. This is what goes on when Congress gets together to try to structure and negotiate legislation.
Don’t worry if you feel lost from time to time.
About the course
This is a “general skills” course. There isn’t a tight package of discrete doctrine like you’ll find in Torts or Con Law, for example. There’s no natural starting or ending point. There’s also no right or wrong answer. There are lots of ways to interpret statutes. It’s a messy class, but it’s important.
It’s important because we live in a “public law era”. The law that most affects people’s everyday lives is largely statutory and regulatory. Therefore, a lot of what attorneys do involves applying, interpreting, understanding, and litigating about these statutes. Most law schools work with the case method, but it’s also important to understand the methodology of statutes and statutory interpretation.
A large question
Should legislative history be examined as a way to help interpret statutory text? Why or why not?
How about some reasons not to rely on the legislative history? In floor debates and such, people might be acting strategically and not genuinely. Also, in the House, you can make revisions to what you say on the floor. Therefore, you’re not always sure that something that’s printed in the Congressional Record is what was actually said on the floor. Committee reports, on the other hand, don’t have that problem. They are what they say they are. Legislative history is also very lengthy.
Say we don’t have an absolutely clear text in a statute. If we don’t look at legislative history, what are we going to look at? Could we look at history history, like newspapers and stuff? Wouldn’t some of that be in the legislative history?
You could also look at case law. But case law may not give us uniform answers.
You could look words up in dictionaries. A lot of judges spend a lot of time looking at dictionaries. There are some cases where the parties have “dictionary wars”!
How about some arguments for looking at legislative history? We could use it to find the intent behind a statute. What do we mean by intent? It’s what the legislature wanted the statute to mean.
What are some problems with this? Well, what is enacted? What does the process yield? It yields a law that people vote on. There’s a big debate here! Some people say that legislative history can’t have any meaning because we don’t know whether a speaker is speaking for herself, for a majority, for a critical submajority, or being strategic. Others argue strongly that there is an adequate way of understanding legislative history. Once we assign relative importance to different parts of the legislative history, it does turn out to be helpful in informing us what ambiguous language means.
The Civil Rights Act
We will focus on the employment provisions of the Act. This became Title VII of the final law.
There’s a Republican proposal and then a Kennedy administration counterproposal. Which one is a more serious effort, and how can you tell?
Who is on the Commission? It’s seven people and they’re staggered so that they get switched off each year.
What’s illegal and who is it illegal against? Federal contractors cannot discriminate based on race, color, or national origin. What’s missing? Sex and religion are not in there.
There are full-time commissioners who are getting paid and have the power to void contracts and prevent future contracts with bad actors.
The Administration’s version
How does that differ from the Administration’s version? The Administration’s version says that they’re part time and get paid per diem. There’s been a rhetorical commitment to civil rights, but bills generally tended to look a lot like the Administration’s bill.
The House Republicans were irritated when RFK tried to have the Democrats claim sole credit for the civil rights bill. JFK just dropped in fluff. That’s an important distinction.
Most of the rules about where a bill goes are very routine and not very politically charged or hotly contested.
A question: is the bill that’s approved by the house committee stronger or weaker than the other two bills with respect to the employment provisions? Who is covered in each version? Are there any differences in the mechanism for enforcement?