Legislation
Class Notes
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.