There will be three essay questions that are similar in approach to the exams on reserve. There are about five exams available. The first question will be a very long hypothetical. Don’t assume that it tracks real-world substantive law. It will include statutes, legislative history, and stuff like that. You don’t need substantive knowledge about the area of law tested. We will need to apply common sense and statutory interpretation tools. We’ll be asked to argue both sides of the issue, just as a lawyer would. We must construct a persuasive case for both the petitioners and the respondents. There will be plenty of arguments to be found on both sides. A strong answer for either position will make the best affirmative case for your own side that includes text and context and also briefly deflect or discredit the best argument for the opposite side. You can’t ignore the other side’s position if they have something highly creditable or may be viewed as such.
As a lawyer, we’ll make as many arguments that we thing are persuasive to make for each side. There’s a thick handful of arguments on each side. Some allow you to go more in-depth than others. Some points may be more persuasive than others. You also must argue the question as an attorney and not a theoretician. Do it the way courts do it. Your philosophy should not inform your answer to the first question. If you think one side has stronger textual arguments, make those arguments. But don’t inject your philosophy in this question; you’ll get your shot in question three.
There is a second, shorter essay question that will also give a factual pattern. It will deal with bribery, lobbying, and campaign finance and will have a substantive focus. We need to know the effects of the BCRA. We only need to know about the provisions we studied in class. The third question will be the normative question. We will be asked to jump into the fray of a philosophical question. We may refer to cases that we’ve read or theories that we’ve studied. Brudney will ask us to react to something that’s “out there” and apply it.
Brudney is looking for issue spotting, analysis of the issues, and strong organization. The test is open book and open notes. You may look something up if you want. You can use a computer, but you must turn in the printed examination at the end of the exam time. You get a little less time because you have to go and print.
Brudney will be around the next couple of days and will have special office hours coming up. If you want to talk about old exams, feel free. Brudney will be out of town Thursday and Friday. He’ll even come in Saturday morning if anyone wants to talk.
Smiley v. Citibank
Our final case! This is yet another agency interpretation post-Chevron application. We have this “National Bank Act”. National Banks can charge out-of-state credit card customers a higher rate than in-state customers. But can the banks charge late payment fees that are legal in their own state but not legal in the cardholder’s state?
Is this a “step one” or a “step two” problem under Chevron? They say that the statute is ambiguous, and thus the court must show deference to the agency’s interpretation as long as it’s not too far off the mark. Scalia concludes that the word “interest” is ambiguous. Does he reach that conclusion based on his own analysis, or based on something else? He starts out by saying that this can’t be a “step one” problem because “interest” is ambiguous. This is kind of like the Stevens/Scalia debate about the word “take”. He presumes that the statute is ambiguous due to the dissenting opinions in lower court judgments.
If you look at the Casey decision, Scalia wrote this opinion for the majority as well. That case involved whether expert fees were included in § 1988. Did Scalia conclude that a conflict in the lower courts was per se evidence of ambiguity in the text? He concluded in that case that the statutory phrase was unambiguous even though Posner had a Seventh Circuit opinion suggesting the exact opposite. Why is Scalia more willing to posit ambiguity here? What’s the default rule? We’re talking about reasonable attorney’s fees in Casey and we have a split in the Circuits. Here, we have a term that no court has disagreed with the Supreme Court’s view, yet we still find the word ambiguous.
Casey was not an agency case. In that case, the Court was avoiding looking at legislative history. Scalia hates legislative history! In Casey, the statute is directly interpreted. If the statute is sufficiently unambiguous, we don’t have to look at legislative history. If the statute here is ambiguous, we look at the agency interpretation, not legislative history. So going to “step two” depends on whether the Court is willing to review, with rigor, the textual argument. In this case, Scalia is not prepared to do that. That doesn’t mean that he will always find clarity when the alternative is legislative history and that he won’t find clarity when the alternative is agency analysis. So look at what “step two” involves and that can give you a clue as to whether you’ll get there. Scalia thinks that the text is clear most of the time.
In part III, Scalia decides that it’s reasonable that late fees are included in the definition of interest. He relies on really old law dictionaries. Did those sources expressly include late fees within their definition? Nope. There’s no reference to credit cards. We’re looking at compensation that is paid to the lender by the borrower for the use of the money. The failure to reference late fees doesn’t mean that they’re automatically included. They may have automatically been excluded as usurious. It might have been useful to look at modern dictionaries, especially because a 1995 regulation is at issue. If there had been some reference to contemporary dictionaries, the Court might have said that it’s not the preferred meaning, but it might not be so wacky as to be an unreasonable interpretation.
The petitioner makes several arguments for why the ordinary rule of Chevron deference should not be followed. First off, the regulation was issued very long after the original statute was passed. But Scalia says that this doesn’t matter. This is a reminder to us that Chevron has changed the terms of why it’s legitimate to refer to an agency. The litigant says that you can’t rely on this because it’s 100 years old! Why is age or length of time not discrediting anymore in the Chevron analysis? Congress left ambiguity in the statute so that the agency could interpret it over time. What’s new in Chevron is the Court’s view that the executive branch is also a politically-accountable branch that deserves deference unless its interpretations are patently unreasonable.
Lastly, why is the inconsistency in the agency position okay? What’s the justification for an agency change of position? Does the Court say that Chevron allows for changes in the agency’s thinking over time? Sure, if there’s a good reason for them to change it, then they should. What’s a good reason? Change isn’t bad per se. How would the dynamic school of interpretation react to Scalia saying that changes in agency interpretation as long as they’re not sudden and unexplained? They would like it! Agencies are given a wide berth to update based on the circumstances, assuming that they are accountable politically in a way that courts are not.
So we’ve covered the practical aspects of interpreting statutes. Brudney proposes that legislatures have some kind of coherence. In legislation, as in almost any other area of the law, the world turns out to be very complicated. Bright lines and per se rules would be nice, but human conduct isn’t nice or neat. It’s full of all sorts of complex cross-currents and messiness. Our job will be to make sense out of the messiness on the exam and in real life.