Legislation Class Notes 1/7/04


Brudneyís office hours are Tuesday 4-5 and Wednesday 1:30-2:30.Heís in Room 313.


Class participation: heíll call on people alphabetically.Heíll 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 donít have to understand the substantive law weíll go over during the course.Those statutes are vehicles weíll 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.


Donít worry if you feel lost from time to time.


About the course


This is a ďgeneral skillsĒ course.There isnít a tight package of discrete doctrine like youíll find in Torts or Con Law, for example.Thereís no natural starting or ending point.Thereís also no right or wrong answer.There are lots of ways to interpret statutes.Itís a messy class, but itís important.


Itís important because we live in a ďpublic law eraĒ.The law that most affects peopleís 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 itís 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, youíre not always sure that something thatís printed in the Congressional Record is what was actually said on the floor.Committee reports, on the other hand, donít have that problem.They are what they say they are.Legislative history is also very lengthy.


Say we donít have an absolutely clear text in a statute.If we donít look at legislative history, what are we going to look at?Could we look at history history, like newspapers and stuff?Wouldnít 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 ďdictionary warsĒ!


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?Itís 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.Thereís a big debate here! Some people say that legislative history canít have any meaning because we donít 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.


Thereís a Republican proposal and then a Kennedy administration counterproposal.Which one is a more serious effort, and how can you tell?


The Republican proposal


Who is on the Commission?Itís seven people and theyíre staggered so that they get switched off each year.


Whatís illegal and who is it illegal against?Federal contractors cannot discriminate based on race, color, or national origin.Whatís 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 Administrationís version


How does that differ from the Administrationís version?The Administrationís version says that theyíre part time and get paid per diem.Thereís been a rhetorical commitment to civil rights, but bills generally tended to look a lot like the Administrationís 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.Thatís an important distinction.


Mansfield puts the bill in.Johnston asks some questions about committee referral.What is Mansfield trying to do, and what is Johnston asking about?Mansfield wants the bill referred to a particular committee, while Johnston wants it referred to a committee based on what kind of bill it is.Mansfield wants it referred to Magnuson, who is the head of the Commerce Committee.Title II, dealing with public accommodations, arguably belongs in that committee.Why is Magnuson a better choice as the committee chair whereas the Mississippi guy in the Judiciary Committee is better for Johnston.The Committee chair has a lot of power!


Johnston is from South Carolina, and heís ďguarding the floorĒ for the southern Democrats.Guarding the floor means if you see a bill being handed to the President of the Senate, you stop it and find out whatís in it.You need a substantive argument to keep the bill from going where you donít want it going.


So whatís Johnstonís argument about where the bill should go?The Judiciary Committee has traditionally dealt with stuff related to the courts and litigation.Since this is a civil rights bill which will send things through the courts, we should send it to the Judiciary.On the other hand, there are other sections that could go to other committees.This is a highly charged political argument!The Judiciary Committee was the most conservative committee in the Senate and had a heavy dose of southern Democrats.Johnston is trying to keep the bill from getting referred to a friendly committee.


Johnston asks for something in particular that might let him not have to stand guard on the floor.Heís asking for a one-day delay.Heís trying to make sure that something isnít snuck past.Heís saying that he wants the opportunity to have the Senate debate which committee the bill goes to.


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 thatís 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?


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