Legislation and Regulation Outline

Main objective of course: To understand how courts interpret and apply law(mostly
statutes and regulations) specified in non-case sources.
A focal point when studying should be: Distilling, analyzing, and critiquing the
reasoning of individual cases to understand the law
Objectives of Course:
1.
To familiarize yourself with these non-case sources of law
2.
Teach ourselves how these sources of law are created
3.
Teach ourselves various approaches to interpreting such sources of law
4.
Also to evaluate the propriety of applying these approaches in particular contexts
By end of semester I need to be able to:
1.
Identify statutes and regulations and know how they apply relative to each other
and to case law
2.
I should be able to evaluate whether these sources of law (especially
administrative regulations) were created by proper procedures
3.
I must be able to interpret statutes and regulations, and when there is
controversy about how these sources should be interpreted, to structure arguments
about why one or another approach to interpretation and application is better than
others
Products and Tort Law
Regulatory State how does the government go about the business of telling people
what they can or cannot do.
- The Market has some influence
Tort Law as Regulation
Regulation of private activity is pervasive in our society. The goal of such regulation is to
allow societally beneficial activity while prohibiting or at least discouraging activities that
create a net harm to society.

The legal system also recognizes that tort liability has the effect of deterring conduct for
which a person may be held liable to another.
Points made by Professor:
Learned hand formula
We want to maximize the benefits at the least cost (monetary value)
we want an efficient level of care
we give people benefits and incentives not to harm
Tort law is acting like a regulator. Better than the government trying to figure out
regulating means for each product.
2 Things Tort Law Does
1.

Takes care of some of the information costs. The manufacturers are in a better
position to make products safer.
2.
Takes care of the externality problem.
Ways in which Tort law can work to induce the cares that we wont (we still want it
to be cost efficient)
Torts affecting laws through internalization
Negligence and Strict Liability
Administrative Costs
Insurance
The Market as a means of inducing spending on safety
The advantages of the market: The ability to cater to individual preferences.
The limits of the market: Four major factors impair the ability of the market to create
optimal spending patterns; these are externalities; transaction costs; limited cognitive
ability of participants; and the relationship of market choices to pre-existing patterns of
wealth distribution
Externalities problem can be described as when two have a bilateral contract that
affects a third party whose interests are not represented in the contract.
Transaction costs make it too expensive for people to internalize externalities.

Educating people and disseminating information is costly as well, in addition there still is
a question of people acting rationally once learning of new information.
Final flaw is that the outcome of any market-based transaction depends heavily on the
preexisting distribution of wealth
Tort Law as an aid to the market
Advantages of tort law:
Causes individuals and firms to internalize the costs of accidents, thus
encouraging spending on safety
Internalization of accident costs can enhance the operation of the safety market in two
related ways:
1.
By forcing individuals and firms to absorb the cost of accidents results in an
incentive to reduce the accident rate, the consequences of the accidents, or both.
2.
By forcing the prices of goods and services to reflect all costs required to make
them available including accident costs.

Merck & Co. v. Garza

In this case the plaintiff needed to show causation, basically he needed to find support
from the studies that supported that the decedent died from Vioxx. However decedents
family could not do that.
General Causation- capable of causing harm to plaintiff in general population & other
possible causes of harm are eliminated
Specific Causation- substance caused particular plaintiffs injury
Special causation might be used or a policy for it is the def. over paying
Causation can be a real problem for the regulatory effect
Class Action Suits:

Class ActionsPros is that the cost of litigation can be mitigated through a class action suit
Big companys want to win early so that they can create precedent so that other claims
wont be brought, so they will spend lots of money. The answer to this is a class action
suit. Class Actions give incentives to lawyers to invest if the see a big judgment.
Agent Orange Case
Court decides to spread the damages amongst the 1100 who were exposed to Agent
Orange (they expected that 1000 people would have gotten cancer anyway).
Corrective Justice- even though people who werent specifically injured get damages
however you make the company pay. However courts dont do this in general. If done
however you would reduce the costs of torts as a regulatory system??

Theories of the Legislative Process

We can get regulation through legislation rather than just torts. Various committees
would be able to regulate while fines and suits would be there to enforce. (however fines
do not compensate). Administrative agencies and the legislature would be creating the
statutes and codes.
When interpreting the statutes and codes the judges will look at the intent of the statute.
NEED INFORMATION ON PGS 1-5 IN LEGISLATION AND REG NOTES PLUS
INFORMATION CONTAINED ON THE SUPPLEMENTAL READING PART
III.
A.

Statutory Interpretation
Finding Textual Meaning

The Letter versus The Spirit of the Law

Statutory Text is known as the letter of the law and also known as the body of the law

The general background purpose of the statute is known as the spirit of the law also
known as the soul of the law
Sir William Blackstones Commentaries offer five signs to interpret the will of the
legislator, by exploring his intentions when the law was made (p.29):
Words
Context
Subject Matter
Effects and Consequences where words bear either none, or a very absurd
signification, if literally understood, we must deviate from the received sense of them.
Puffendorf example that whoever drew blood in the streets should be punished with
the utmost severity
Spirit and Reason of the Law the cause which moved the legislator to enact it
Riggs v. Palmer Case about the testator who got murder by beneficiary nephew.
Letter of the law would give Elmer the property but the spirit of the law would not allow
Elmer to receive the property.
Hard to figure out the testators intent
We could fall back on a common law axiom
Arguments that common law should be used in interpretation of statute, however
sometimes statutes are created to move away from the common law (Professor
Dickerson).
Purpose behind rule is to cut down on arguments and make it easier to decide who gets
what.
Interesting thing about Riggs and the purpose they give is just loosely tied to the
purpose. Main thing is the policy behind deciding it that way.
The majority in Riggs concluded that despite the clarity of the statutory text, the
legislatures intention ran counter to the expressed meaning of its chosen words in this
situation

Professor Dworkin emphasizes the importance of coherence, explaining that, since a

statute forms a part of a larger intellectual system, the law as a whole, it should be
constructed so as to make that larger system coherent in principle.
This case suggest that when the letter of the law produces an absurd result or a
result that would go against public policy than the interpretation of the statute
would favor a result that society would consider just even if it might go against
the letter of the law and even the main purpose. (Tiya)

Church of the Holy Trinity v. United States (Strong Purposivism Case) Case where
the statute that made it unlawful to prepay the transportation or in any way assist
migration of any alien into the United States, under contract to perform labor or service
of any kind in the United States, its territories, or the District of Columbia
Holy Trinity has become the most important marker for the idea that when the letter of
the law and spirit of the law conflict, the former must yield to the latter.
They get around the language of the bill by looking at the committee and what the
committee said
The court looks at the motives and history of the Act, the history and the
circumstances that preceded the act where one in which capitalist were paying
for foreigners to come in the country and work for low wages. The act was passed
to prohibit foreigners that could not come on their on wages.
Court basically says that the Act was intended to keep pastors and intelligent
people out.
Committee Report(s)- The case only cites the Senate report. Manual Labor not put in
because the bill might have gotten passed. This is proof that some people did not agree
with manual labor in the bill.
The Court looks at classic precedents- Puffendorf letting blood in the streets

Five ways in which the Court in Holy Trinity went about discerning the
legislatures purpose.
a.
the statutes title
b.
the mischief - If the interpreter can identify the mischief the statute was
trying to remedy, that fact will say a great deal about the purpose of the legislation.
c.
legislative history
d.
societal values- In Holy Trinity there was a major religious value component in
justification
e.
other evidence of statutory purpose-

Christian Nation- the ethos of the nation or the people. Government actors are no
suppose to make their decisions based on being a Christian nation. The legislator
should be the one deciding based on religion because they are voted by the people.
How do you know what the purpose was? Look at the debates. Another problem with
purpose, ex. Clean Air Act. One problem with purposvism is how far do we go
Purposes dont tell us where to draw the line
Court does ignore the language of the Act
Intent is different from the purpose. Purpose is broader such as this purpose was to
prevent competition in labor.
The summary a statute, language isnt perfect and sometimes the legislators misses
things or expresses thing that suggest that the legislators is saying something that they
didnt intend
Hart & Sacks- Legal Process
Here is the evil and we want to stop the evil, we want people to stop killing people,
impoverished people excluding
Legislation isnt coherent, there are arguments, conflict???

Legislation process is messy, gender discrimination example

Argument for Hart & Sacks- the problem with the textualist approach, we know about
vetogates,
The New Textualism
Textualist Judges most prominently Justice Antonin Scalia and Judge Frank
Easterbrook challenged many of the key assumptions defining traditional purposivism.
Textualist promote that judges stay as close to the meaning of a clear statutory text even
when the result contradicts the statutes apparent purpose, however derived.
Modern textualist emphasize that judges must respect the legislative compromise
embedded in the statutory text.
Various approaches to statutory interpretation
Prof believes that there is a problem with every approach pros and cons to each
Purposovist approach- tries to find the purpose for which the provision was put in the
statute. They will try to keep the statute coherent. As a reasonable person writing the
statutes through reasonable means. Assumes legislator is like a reasonable person
pursuing reasonable ends reasonably (ends tend to be those that further the public
interest in some way). Has to be a reason like this is good for the country.
Extremeness was present in Holy Trinity case. Riggs was based on bad policy, based
on a purposovist view that the testator would not want his stuff going to someone who
killed them. In Holy TRinty that was purposovist because the purpose did not fit wit the
language. Holy Trinity was an extreme version of purposovist because it was in clear
contention with the text of the statute.
Under Riggs we would say that a statute is just so absurd and we wouldnt intend this.
Under Trinity today the court would think that the language is too clear.

New Textualism
What is the textualist approach and assumption? How does a textual interpret a statute?
Statutes embody ends and means which is another way of saying they draw lines
that make tradeoffs between goals.
Textualist looks at the meaning of the text, the best meaning taking into account
context (how has legislator used this in the past), they are perfectly willing to look at
the context (Macbeth ex.), context matters, the meaning at the time the statute was
enacted, (Puffendorf ex.) any statute cannot be single purpose,
Political battles, strategic behavior, compromises and even logrolling and vote
trading (Vote trading are like trading one want or desire traded with another if the
exchange things they can do, there is no middle ground you just trade. Under this you
cant look at coherent ). Textualist say even if the purposivist were right
Purposovist statutes that are more public interest in a sense.
Textualist if they can get the language than thats what is. The only way they stop it is by
politicians calling them out on it.
Disadavantage to purpo is that you cant just ignore the langauge

But many textualist dont like absurd results, just so absurd, also some absurd results
that would cause so many cases, even would dislike it
Once you have a purpose you still need to draw a line. Before there are countervailing
things that suggest we gone to far. Purpose does not tell you where the line is intended
to be drawn
If you change the baseline than the circumstances can change???
Penalty default rule by seidenfeld???
Intent is what is the particular meaning, Purpose is what is the general goal.
Purpose is what is the broad goal of this statute.

West Virginia University Hospitals, Inc. v. Casey Case where expert fees were asked
to included with attorney fees.
Scalia (Scalia is a textualist)the majority opinion:
Court says it is not like the attorney fees inherently include expert witnesses
Scalia Courts response in support it decision: One thing they say is that we dont give
credence because that is not what has passed
Second thing is that things that legislator did not intend may slip through
This language is what was passed and got through the house and senate
Scalia says that 1988 would not have overturned Alyeska is an irrelevant precedent
Dissent Stephens (Purposivist View):
Dissent: Civil Rights cases sometimes allow expert fees so they can bring cases and
win them basically equalize the playing field
The other purpose of the Act was to undo Alyeska case then this would indicate that
they intend to.
Stephens suggested that we do society a disservice when judges dont apply the
purpose interpretation and instead just apply textual interpretation. Consequently
Congress will have to take the time and revisit the matter and restate its purpose in
more precise language.
While purposivist see a mismatch between a statutes text and apparent purpose,
textualist are more likely to see such a mismatch as the consequence of the
inevitable conflit, bargaining, and compromise of hundreds of elected officials
and countless constituents.

Textualist believe that...

That is is tough for a judge to discern a statues purpose
Textualists emphasize that statutes embody choices about both ends and
means. The means adopted give interpreters important information about the price the
legislature was willing to pay to achieve its ends.
Scalia in Casey the purpose of a statute includes not only what it sets out to
change, but also what it resolves to leave alone and that the best evidence of that
purpose is the statutory text adopted by both Houses of Congress and submitted to
Congress
the point of interpretation is to respect the supremacy of the enacting legislature,
not te current legislature.
textualism operates as a penalty default rule that improves the
legislative process:..the idea is that Congresss reliance on text is more likely to
provoke Congress to clarify an ambiguous or imprecise statute, and this effect
may enhance, rather than detract from, the legitimacy of the interpretive
practice. (Purposivists usually counter and argue that these arguments fail to
account for the complexities and difficulties of the legislative process
textualist would say that there will be inconsistencies in interpretation that federal
judges and justices would simply never be able to establish a coherent approach to
interpretation
Purposivist believe that...

Judicial Correction of Legislative Mistakes

a.
The Absurdity Doctrine
An old and well established principle of statutory interpretation is that statutes should
not be construed to create absurd results (Blackstones fundamental principles of
statutory interpretation)
Most textualists and purposivism find common ground when considering an
interpretation that would produce an absurd result
United States v. Kirby (Justice Field)
Supreme Court of the United States 1868

Facts: The defendants were indicted for knowingly and wilfully obstructing and retarding
the passage of mail and of a mail carrier when def. (officers) arrested the mail man for
committing murder
Court:
Talks about the statute itself only applies to those who knowing and wilfully

obstruct or retard the passage of the mail. That the statute has no reference to acts
lawful in themselves, from the execution of which temporary delay to mails
unavoidably follows.
General terms should be so limited in their application as not to lead to injustice,

oppression, or absurd consequence.p. 87

Court chooses to use common sense. Uses Puffendorf example whoever drew

blood in the streets should be punished.

Kirby states an absurdity is something that contradicts common sense,

understood as societys widely and deeply held values.

The Rationale for the absurdity doctrine:
Court views doctrine as a method for discerning legislative intent

On the assumption that legislators represent their constituents a statutory

interpretation that offends widely and deeply held social values represent failure of
foresight of Congress which they would have never intended
Textualist critique purposivism because statutes embody legislative
compromises, and so a statute may not have a single and coherent purpose.
Most modern textualists would accept Kirby but not Holy Trinity, on the basis of
judicial ursurpation.
Public Citizen v. United States Department of Justice (Justice Brennan)
Supreme Court of the United States, 1989
Facts/Suit:
President used ABA to help advise him on making judiciary nominations

FACA was born to access the needs of numerous committees, boards, etc.

Purpose was to minimize committees and only establish them when they would be
essential. Part of FACA was being able to have management controls over these
advisory committees

WLF (Washington Legal Foundation) brought suit against the ABA after ABA
refused to WLF request for the names of potential judicial nominees,
WLF asked the District of Colombia to consider ABA an advisory committee

under FACA and sought injunctive relief for the Justice Department to cease utilizing
the ABA committee as an advisory committee until it complied with FACA

Court:
Under the FACA statutes language it defined advisory committee among other
things as any committee which is established or UTILIZED by the President.
Court focused on the word utilized and concluded that if the ABA was utilized by
the President than it would be under FACA regulations.
Court construed the word utilize as being undefined by the statute. That the
plain reading of utilize would produce results that the Court found absurd like
NAACP and Political Party consultations could be reviewable (Dissent disagrees
that this are absurd results). Court looks to the purpose of FACA which was to
eliminate wasteful spending, Court thinks that FACA was not intended to cover
every formal and informal consultation between the President or an Executive
agency and a group rendering services.
Court: Looking beyond the naked text for guidance is perfectly proper when the result it
apparently decrees is difficult to fathom or where it seems inconsistent with Congresss
intention, since the plain meaning rule is rather an axiom of experience than a rule of
law, and does not preclude consideration of persuasive evidence if it exists.
Court decides to go against a literal meaning of utilize because it would go
against what they believe that Congress intended.
Justice Kennedy Concurrence:
Believes that FACA does cover ABA activities

Agrees with judgment but believes Court could have gotten to the same outcome

by a different analysis.
Disagrees with Court rejecting the literal meaning of utilize. Believes that ABA

would fall under FACA under the utilize description but would be found
unconstitutional.

Believes that reluctance to working with the basic meaning of words in a

normal manner undermines the legal process.
Believes that where the language of the statute is clear than Court should be

bound to it. However where the plain language would lead to patently absurd
consequences than language should not be applied.
Does not embrace the principle of Holy Trinity which says that a thing may be

within the letter of the statute and yet not within the statute, because not within its
spirit, nor within the intention of its makers. Believes that when a statute is clear and
where it would not be patently abusrd to apply the statute to such conduct, it does not
foster a democratic exegesis for this Court to rummage through unauthoritative
materials consult to the spirit of the legislation in order to discover an alternative
interpretation of the statute with which the Court is more comfortable.

1.

Is Absurdity in the Eye of the Beholder (text book)

- Justice Kennedy (concurrence) argued that the Court should limit the exception
(absurdity doctrine) to situations where the result of applying the plain language would
be, in a genuine sense absurd, where it is quite impossible that Congress could have
intended the result, and where the alleged absurdity is so clear as to be obvious to most
anyone.
2.

Absurdity and the Level of Generality Problem

In Public Citizen Justice Brennan did not focus on the alleged absurdity of the
particular application of FACA at issue. Rather the court focused on the word utilize
and that its conventional meaning would imply other results that are absurd.
Justice Brennan opinion was that the identification of absurd applications that
are not before the court CANNOT empower the court to conclude, more generally, that
the language of the statute cannot be read in its ordinary sense, thereby opening the
door for consideration of extra-textual indicia of intent or purpose?
-

Argument for majority view Then again perhaps the Court was getting at the
following argument: If a straightforward reading of a statutory term would lead to a
range of absurd results, this may be prima facie evidence that the term itself must have
a narrower then it would first appear.

New Textualist view that statutes are a result of the bargaining process and we
must take them as they are
Modern textualists have emphasized the fact that introducing clarifying
amendments to address absurdities may open a Pandoras box, that ultimately scuttles
proposed legislation-but does alter the reality that inherent imperfections in the
legislative process sometimes lead to absurd results that no rational legislature would
have endorsed
-

Congressional Response to the Absurdity doctrine

One argument against the absurdity doctrine is that there is a risk of false
positives in which the court finds an absurdity when there is none, are far greater
than false negatives failing to prohibit an absurd application.
Another argument is to just not rescue Congress and let them internalize their
bad statute and be more careful as well as change the bad statute
-

Other techniques for avoiding absurdity

In defending the absurdity doctrine courts refer to Plowdens discussion of the
prisoner who breaks a rule of escape and escapes when the prison is burning down
Puffendorf surgeon drawing the blood
-

What is the text?

The Supreme Court has repeatedly held that the starting point for interpreting a
statute is the language of the statute itself.
We have to acknowledge that we can discern what a word means by the context
because we are a community, however there are various communities that have their
specific jargon like lawyers, doctors, etc. Accordingly what is apparent to some might
not be apparent to all.
-

Moskal v. United States (Justice Marshall)

Supreme Court of the United States (1900)
Facts:

Moskal changed the mileage on used cars and sent them to Virginia. Virginia
authorities unaware of the alterations issued Virginia titles incorporating the false
mileage figures.
Moskal indicted under statute 2314 which basically made it a crime to falsely

made securities through interstate

Moskal argued that the titles themselves were genuine that they were made

unknown of the altered mileage and thus was not falsely made

Issue on analysis: Whether a valid title that contains fraudulently tendered odometer
readings may be a falsely made security for purposes of 2314 presents a
conventional issue of statutory construction, and we must therefore determine whats
cope Congress intended 2314 to have...
Court supports it reasoning that falsely made includes Moskals behavior
because:
Court believed that Congress had the purpose of enacting 2314 in order to

come to aid the states in detecting criminals who try to escape detection by channels
of interstate commerce
Finds that the plain meaning of falsely made and the legislative purpose give

reason to believe that the statute applies to a fraudulent scheme for washing vehicle
titles.
Dissent Scalia:
Believed that falsely made ordinary meaning that was used by majority was

wrong. That falsely made would reasonably be someone who knew they were
making a false document.
Accuses court of wordplay

Notes from text

1.
Ordinary Meaning, Legal Meaning, and Legislative Intent
Justice Marshall uses an ordinary meaning of the phrase falsely made, that the
inclusion of a false odometer reading would render and automobile title falsely made.

Justice Scalia uses a more technical meaning of the phrase falsely made which is
more to forged and applies to an inauthentic document rather than an authentic
document that contains false information.
2.
-

The Relevant Audience and the Rule of Lenity

Justice Frankfurters statement that the choice between ordinary and technical
meaning depends upon the identity of the audience to whom the statutory provision is
directed. However there are various audiences some statutes are tailored to lawyers
and some more tailored to none lawyers.

COLLOQUIAL MEANING (ordinary meaning) OR DICTIONARY MEANING?

Smith v. United States (Justice OConnor)
Supreme Court of the United States (1993)
Facts:
Smith was convicted of violating 18 U.S.C. 924(c)(1) which it made a crime
worth more time when the use of a firearm during and in relation to a drug trafficking
crime.
Smith argued that he was not using the firearm but was just bartering the gun

for cocaine.

Courts:
Court decided that Smith behaviors fell within the statute because the gun was

used in relation to a drug trafficking crime.

Dissent: Scalia, Stevens, Souter
Basically thought that use of a firearm taken at is literal meaning constituted

shooting it or pointing at someone.

Notes from text
1.
The use and abuse of dictionaries
The courts use of dictionaries although increasing is controversial. One point
against it is that by focusing on dictionary definitions will miss or under value the policy
impulses that inspired the legislation. (Judge learned hand held this view)

Judge Easterbrook supported has observed that the dictionary is merely a

museum of words, an historical catalog rather than a means to decode the work of
legislatures.
HOWEVER, the Supreme Courts most dedicated purposivists have no difficulty
consulting dictionaries as a useful starting point for identifying the purposes Congress
sought to achieve through its chosen words.
-

2.
Disagreement and Clear MeaningTextualism presupposes that interpreters can discern and agree upon the clear
import of a statutory text.
3.
Earlier Examples Revisited
The dispute in Smith shows that reasonable people (and Justices) can disagree
about the ordinary meaning of language, and that the assertions about statutory clarity
are often more problematic than they appear
North Haven Board of Education v. Bell
Supreme Court of the United States (1982)
(Justice Blackmun)
Issue: Does Title IX reach the employment practice of educational institutions?
Holding: Relying on legislative hearings the court concluded that it did.
Notes from Book:
The Courts decision in Bell relied on a variety of different forms of legislative
history. Some parts of legislative history that Courts use...
Get info on four topics from pages 152-162!!!
1.

Committee Reports- conventional wisdom has said that this is the most
reliable form of legislative history
2.
Statements of Individual Legislators- problem here is that one persons
view might not have reflected the majority of views
3.
Successive versions of a statute
4.
Subsequent Legislative Action-

Blanchard v. Bergeron (Attorney fee case)

Supreme Court of the United States
1989
Justice White
Facts/Procedure:
Blanchard received 10k as damages in their claim against a sheriffs deputy in

violation of 42 U.S.C. 1983 which it was found that he was deprived of his civil rights
District Court awarded $7,500 in attorney fees under 42 U.S.C. 1988,

The COA REDUCED award to $4,000 in attorney fees, ruling that petitioners

40% contingent-fee arrangement with his lawyer served as a cap on fees

Issue: In absence of a specific definition of reasonable attorneys fees under
section 1988, should attorneys fees be limited to to the amount provided in a
contingent-fee agreement?
Court:
Looks at legislative history
Looks at Johnson v. Georgia Highway because the legislature (both houses)
referred to Johnsons 12 factors for assessing the reasonableness of an attorneys fee
award
Court finds that Johnson talked about that litigant should not get greater

than was contracted with attorney (what lower court used which was dicta),
HOWEVER court says that Congress pointed to the three district court cases
(holdings) in which the factors were correctly applied. Those cases clarify that
the fee arrangement is but a single factor and not determinative.
Court finds upon analyzing cases which used Johnson factors that

contingent-fee factor was just one factor and was not dispositive and could not
serve as a ceiling on an award of attorneys fees.

Justice Scalia Concurrence:

Agrees except for the part that rests on detailed analysis of Johnson and

Johnson cases
Says that Senate referred to district cases, and the House referred to Johnson

Doesnt believe that Congress spent much time pouring over the Johnson cases

at all, so when the majority talks about Congress looking at the cases, he is skeptical

Doubts the weight of the cases cited in the legislative history

Continental Can Company, Inc. v. Chicago Truck Drivers, Helpers and Warehouse
Workers Union Court here is interpreting the meaning of substantially all in a statute
that involved pension fund assets.
US Court of Appeals
Judge Easterbrook
Issue: What does substantially all mean in 1383?
Court:
Looks to the legislative history
Takes into account Representative Thompson statements which were made
before the bill became law, that substantially all means 85% as commonly
understood by the IRS
Court also looks at Senator Durenbergers statements which were that

Thompson was not there when the amendment orginated and did not participate in
writing it, and that substantially all means 50.1 %
Court looks at the fact that the statements made by Thompson were before the

bill was enacted and that Durenbergers statements were made after senate adopted
4203 and the second statement came two months after the bill was enacted
Courts main basis for finding that substantially all mean 85% was the

fact that Thompsons view of 85% was accepted by Congress and the President,
as well as the common legal meaning of substantially all as being 85% (tax
statutes, IRS, and regulations they could find though substantially all was
85%)

Notes from Book:

1.

The Formalist Argument: Legislative History is not law

Textualist reject looking at the legislative history intent because they feel that the

text is the law and not the subjective intentions of individual legislators.
Scalia believes that the greatest defect of legislative history is its illegitimacy, that

legislative history unlike a statute has not gone through the constitutionality mandatory
processes of a bicameral passage by the House and Senates and a presentment to
the President for approval or veto

Easterbrook argues that opinions of legislatures are not the law, so why should
we make them the law? opinion poll among members of Congress shall have the
effect of law p.170
Justice Breyer a critic of textualist says that legislative history is useful in

trying to understand the meaning of the words that do make up the statute or the law.

2.

Does Judicial Use of Legislative History Facilitate Circumvention of Article

1?

Textualists argue that legislative history is filled with deliberate attempts to

circumvent the Article I, 7 process
That legislative history is filled with private-interest goals that the groups would

not be able to persuade the entire Congress to endorse

Delegation theory is that legislators who know of only a general purpose of a

piece of legislation, rely on details from members who actually sat on committees, and
adopt these committee wills as their own. Scalia does not like this because he
considers the powers assumed by Congress under Article 1 of the constitution are
nondelegable.

3.

Is Collective Legislative Intent a Coherent Concept?

Another argument new textualists make is that subjective legislative intent is

simply an incoherent concept because legislatures, as collective bodies, do not have
an intent. Basically no ONE MAIN INTENT, diverse intents. Thus trying to figure out
what the legislature intended is hopeless and misleading.
Social choice theory, which studies how individual preferences are aggregated
into collective decisions.
Easterbrook points out that even if a committee and a sponsor indicates a given
preference on an issue, one cannot reason from that evidence to the outcome that the
legislature would have reached collectively
Response to Easterbrooks position: Professors Farber and Frickey p. 175
suggest that because of the impossibility to have a collective coherent choice under
pure majority rule this actually strengthens the need to look at the legislative history,
so that you can understand the filtering procedures that Congress has put in place to
aggregate its preferences into a meaningful collective decision
Another response: Professors McCubbins, Noll, and Weingast p. 175 that
legislative committees, sponsors, and floor managers have incentives such as keeping
a good reputation to be truthful and forthright

4.
-

The Probative Value of Legislative History

Textualists suggest that committee members are likely to be preference outliers,

with views that diverge quite substantially from the chamber. Why might this be? First,
as some political scientists suggest, Members of Congress self-select onto committees
where they (or their constituents) have particularly intense policy interests.

5.
Does Legislative History Expand Judicial Discretion
One worry by textualist is judge activism which is a concern about judges
going beyond the legitimate exercise of judicial discretion, using an overly loose and
undisciplined form of interpretation to implement their own views of sound public
policy and the expense of the legislative and executive branches.
Critics of the above statement say that judges would be more confined to the
purpose and public policy of the legislature. They argue that legislative history may on
balanc, constrain rather than liberate judges
6.
Legislative History and Congressional Expectations
Professors Eskridge and Ferejohn make the point that legislator assumptions
involve their understanding of how courts and agencies will go about interpreting
statutes. This premise is reflected with knowledge of our basic rules of statutory
construction.
7.
-

Legislative History and Judicial Decision Costs

Professor Vermule lower-level institutional analysis in which he concludes that it

is simply impossible tell whether judicial reliance on legislative history averts more
error than it causes, or vice versa, that in the face of such uncertainty judges should
eschew legislative history for the simple reason that the costs of legislative-research is
high.

The New Synthesis

Scalia has had a major impact on the Supreme Court and their use of legislative
history and how much weight they put on legislative history. One factor is that textualist
justices like Scalia and Thomas are strong on not supporting an opinion that has used
legislative history, which can have a powerful effect on a closely divided court. On the

other side Justice Stevens nor other justices decline to join an opinion if it fails to be
grounded in an interpretation based on the legislative history
Courts in general now are relying less on legislative history
Professor William Eskeridge a critic of textualism says that three positive
developments might emerge from textualists efforts and thus improve the
practice of using legislative history:
1.
Textualists remind courts and attorneys that they must first analyze the text of a
statute first before going to legislative history
2.
The textualist might encourage reliance solely on the text when it is clear
3.
Also textualist will encourage courts to make sure that the legislative history is
reliable
Exxon Mobil v. Allapattah Services
Supreme Court of the United States
2005
Justice Kennedy
Background: The origins of 1367 Supplemental jurisdiction came about after Finley v.
United States a federal-question jurisdiction case in which the P. wanted to bring in state
claims against other defendants that arose out of the same underlying dispute but could
not qualify on its on. The Supreme Court held that the Federal courts could not exercise
supplemental jurisdiction. Subsequently 1367 was developed in which people thought
it overturned Finley.
The question was did 1367 overturn Zahn which involved a diversity action
which basically said that a federal court could not have supplemental claims over the
claims with a value below 75k?
Def. and dissent: Want to look to other tools beside the text and structure of statute,
basically wanted to look at the legislative history, which they believed showed that
Congress did not intend 1367 to overrule Zahn
Rely on the House Judiciary Committee Report on the Judicial Improvement Act

which said that 1367 would authorize jurisdiction in a case like Finley, and they also
remarked that 1367(b) is not intended to affect the jurisdictional requirements of 1332
cited Zahn and Ben-Hur
Court decides to go with a text interpretation because:

1367 is not ambiguous

they think the legislative history is not the best interpretation of 1367
What text says is the authority not the legislative history
Legislative history and extrinsic materials serve a purpose when the text is
ambiguous.

Two criticisms that the court uses to refute the def. and dissenters arguments
about the use of the legislative history:
1.

Legislative History is often murky, ambiguous, and contradictory. Court

quotes Judge Leventhals memorable phrase looking over a crowd and
picking out your friends. p. 186
Although the Federal Courts Study Committee did not expressly adopt the

Subcommittees specfic reference to Zahn, it neither explicitly disagreed with the

Subcommittees conclusion that this was the best reading of the proposed text nor
substantially modified the proposal to avoid this result. Basically House Report and
Subcommittee working paper were contradictory.
2.

Judicial relaince on legislative history make give unrepresentative

committee members- or worse yet, unelected staffers and lobbyists- both the
power and the incentive to attempt strategic manipulations of legislative history
to secure results they were unable to achieve through the statutory text.

Court says that there has been an acknowledgment by parties that have specific
knowledge of the statute and the drafting process, that the the plain text of 1367
overruled Zahn and that the House Report was a post hoc attempt to alter that result

Court does not give much weight to the House Report, but put some weight in
the Subcommittee Working paper because the three jurist and three participants in
drafting 1367 agree that on its face 1367 overrules Zahn

Court considers the claim that if Congress intended 1367 to overrule Zahn
which is the what the court s suggesting then there would have been more
controversy than there was. The court responds to this claim that they dont

think Congress would have been upset about this result, because any
competent legislative aide would have flagged the issue if they thought it of
importance to their boss.
Dissent of Stevens, Breyer:
Disagrees that there was manipulation

That Congress clearly did not want to overrule Zahn by the language

Refers to the fact that there was contradictory evidence only highlights that the

statute was ambiguous

Notes from textbook
1.

Legislative History and Statutory AmbiguityModern Doctrinal Line on the use of legislative history is that legislative history is

ok to use when the statute is ambiguous. (Justice Kennedy in Exxon Mobil). On this
view, although legislative history may be used to resolve statutory ambiguity, it
may not be used to create statutory ambiguity or to overcome the clear
semantic meaning of the text.
Problem with modern doctrinal line on the use of legislative history is that even if

justices dont find a statute ambiguous they all might interpret it to mean different
things

2.
Close scrutiny of the particular legislative history3.
-

Distinguishing Types of legislative history- GET NOTES P. 191-193

Court treated House Report as on par with the committee report

Other potential uses of legislative history

Corning Glass Works v. Brennan
Supreme Court of the United States, 1974
Justice Marshall
Background: The 1938 Fair Labor Standards Act added the principle of equal pay for
equal work regardless of sex when the Equal Pay Act of 1963 was added

Issue: Whether Corning Glass Works violated the Act by paying a higher base wage to
male night shift inspectors than it paid to female inspectors performing the same tasks
on the day shift, where the higher was was paid in addition to a separate night shift
differential paid to all employees for night work?
Facts:

Corning began to use automatic production equipment and thus wanted to

operate in the night as well
Women were not allowed to work at night under New York and Pennsylvania law
In order to fill the spots they hired male employees, some from day shift to work
at night
Male employees requested higher wages and receive them
Thus men were made much higher than women who were doing the same
work during the day
Sometime after Act Corning allowed women to work night shifts (which law
amended to allow women work at night)
1969 Corning established the same base wage, whatever their sex or shift
HOWEVER A PROVISION in agreement served essentially to perpetuate the
differential in base wages between day and night inspectors

Court:
Congresses purpose in enacting the Equal Pay Act was to remedy a serious and
endemic problem of employment discrimination in private industry
Congress intended equal work to be paid by equal wages

Court said that the secretary needed to show that an employer pays

different wages to employees of opposite sexes for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
are preformed under similar working conditions.

Corning argues that the Secretary has failed to prove that Corning ever violated
the Act because the day and night shifts are different working conditions.
Court says that Congress acknowledged that job evaluations needed to be
outside the purview of the bill
Court says that working conditions according to Congress contains two
elements: surroundings and hazards, and both of the night shift and day
shift contain the same things
-

Notes from textbook

1.

Distinguishing Uses of Legislative History

Judge Easterbrook (a textualist) brings about the difference between using

legislative history as an authoritative source of legislative intent and relying on it as a
source for evidence for facts about the world. Easterbrook suggests that to decode
words that you must reconstruct the legal and political culture of the drafters. That the
process is objective and that the search is not for whats in the authors head but for the
rules of language they used.
Easterbrook says that looking to the legislative history for the surroundings of a

word are different than using the legislative history for the intent of the legislator.
Easterbrook says that legislative history may show that words with a denotation

clear to an outsider are terms of art, with an equally clear but different meaning to an
insider.
Easterbrook is worried about manipulation of the legislative history by the court in

just choosing what they want to use, also worried about savvy legislators describing
terms in favorable ways in the legislative history in order to manipulate the court, thus
he warns that we must be careful and verify the representations made in the material,
rather than taking them at face value or giving them additional weight because of their
congressional source.
2 Narrow contexts in which textualists have relied on legislative history:
1.

Scalia in United States v. Fausto used legislative history to prove a courts

conclusion, or as some sort of authority to cite that was used to back decision.

2.

Scalia also said in Green v. Bock that he wanted to use legislative history to help
determine the existence of absurdity, that Congress could not have meant it and that

Congress overlooked its application in someway, and that if someone in the legislative
process had mentioned the application then the Court might find it difficult to conclude
that the absurd result was overlooked. (Counter-argument here is that Scalia
always argues that legislators dont read legislative history)
2.

Specialized Meanings and the Problem of Multiple Audiences, Redux

Sometimes technical terms might be understood by some of the predominant

audience of a statute but not all- Corning Glass

3.

Changes in Specialized Meaning over Time- What if a term of a statute

begins to mean something else over time?

One possibility that many courts would probably endorse is that the change of
the industry usage does not matter for the purposes of the Act (equal payment act in
this particular situation), because the relevant interpretive question is what the statute
was intended or understood to mean at the time of enactment.

Another argument could be that by incorporating a broad term (In this case
working conditions Corning Glass) that congress meant to incorporate by reference
whatever meaning that term had in the relevant community at the time of enforcement?
p, 201

The Judicial Power and Equitable Interpretation

-

Justice Stone takes the non to prevalent view that judges should treat a statute
like we treat a precedent, as a declaration and a source of law, and as a premise for
legal reasoning.

Case United States v. Marshall, provides an opportunity to see how

different concepts of the judicial role affect approaches to statutory
interpretation.

United States v. Marshall

U.S. Court of Appeals for the 7th circuit
1991
Judge Easterbrook
Facts:

4 people convicted of drug charges. (LSD)

Marshall convicted of distributing 10 grams which was a 20 year prison sentence.

Brumm, Chapman, and Schoenecker convicted of selling ten sheets of paper
containing LSD which was 5.7 grams, a five year mandatory minimum applied (various
sentences p. 204)

Issue: Whether the statute excluded the weight of a carrier medium?

More Facts:
Pure LSD is dissolved in a solvent and sprayed on paper or gelatin or paper and

after the solvent evaporates its cut into squares either on the paper or the gelatin and
gelatin and paper weigh much more than the drug itself.
Marshalls (one of the defs with the most possession) doses weighed 113.2

grams; the LSD amounted to 670mg, not enough to activate the 5 year
mandatory sentence, let alone the 10 year minimum.
The other defendants possession did not even make the one-gram

threshold for a mandatory sentence

Court:
-

Says that various weights of carriers would determine sentences rather

than the amount of LSD.

Court says that the drugs are not sold pure but have fillers

Court looks at the fact that Sentencing Commission says that they consider
LSD to be sold in a dilute form and thus far less than the 100% ingredient

Court looks at the language of the statute detectable amount meaning

the opposite of pure and mixture as not being pure.

-

Court says that mixture could not include all carriers

Court eliminates LSD being considered a substance because the LSD does
not react chemically with the gelatin or the blotter paper
BUT court does find that LSD is a mixture because tiny crystals of LSD mix

with the paper

Court relies on other courts finding LSD to be a mixture with its carrier

(United States v. Rose)

Court addresses Dissent:
Irrational results are not happening (like some going to jail for life because they

dropped some LSD in a 2liter coke bottle)

-

Says that Congress had consulted DEA agents to help with sentencing

3 rational basis that the Court thinks Congress had for making the penalties
depend on gross rather than net weight:
1.

Carrier medium is the tool of the trade of selling drugs thus it is reasonable to
incorporate the tool of distribution in the penalties

2.

In 99% of the cases LSD is sold on a blotted paper (Tiya, thus all of the cases
should be applied pretty much the same)

3.

Weighing the actual weight of the LSD minus the carrier would be a difficult
process

Dissent by Judge Posner:

-

Addresses the content of the drug in each dose

Various carriers various weights

Weight of the carrier greater than LSD, as well as irrelevant to its potency

Disparity in sentences

Feels that Congresss only worry is the cost of weighing the LSD minus its carrier

Says that there will be different sentences when there shouldnt be based on
what carrier was used that could discriminately affect sentencing

Dissent talks about 2 judicial views that are at odds:

1.

Positivistic view (affirms harsh sentences in this case): The what the
legislatures produce is clear, explicit, and definite enactments

2.

Natural view (freer interpretation, one influenced by norms of equal

treatment): The the practice of interpretation authorizes judges to enrich positive law
with the moral values and practical concerns of civilized society

Notes from class

How prof wants you to answer questions. No need to look at the dictionary.
But first you need to phrase the issue and then organize it so that you do get
points. How do we go about the accepted methods of interpreting the statute
1. Start off with talking about the issue
2. Then,Description of the law (includes interpretive methods)(include
textualism, purposivism, intentionalism with three sentences on how they work)
3. then, an analysis of the law of the various approaches to interpretation
which is best in this case (then you give all the pros and cons for your argument
and against the other forms of interpretation)
4. Application: applying the best approach or rule, how does the case come
out. Apply the best approach. Then you have to say that even if I got wrong and
a judge would apply something else then you talk about the other two and then
you try to eliminate???
5. Is the conclusion
There is a sub issue of what is a practice or procedure with respect of voting
you need to address and the issues and potential subissues are.
GET NOTES PGS 212-217 AND 222-25!!! Canon info
CANONS there are two types of canons semantic and substantive

A. The Expressio Unius Canon- the principle that when a statutory provision
explicitly expresses or includes particular things, other things are implicitly
excluded
B.

The Noscitur A Sociis Cannon, The Presumption Favoring Consistent

Meanng, and the Presumption against surplus language

Get notes pgs 233-34

Gustafson v. Alloyd Company, Inc. GET NOTES OF CASE PGS 234-49!!!
Supreme Court of the United States, 1995
Justice Kennedy
Background: 12(2) of the Securities Act of 1933 gives buyers a cause of action
against an undoing of the contract against those who made false statements or or
omissions by means of a prospectus
Issue: Whether the contract between Alloyd and Gustafson was a prospectus
as the term is used in the 1933 Act.?
Facts: Gustafson sole shareholder of Alloyd agrees to sell the stock to Wind Point for
18million, and an extra 2 million which was the estimated increase in Alloyds net worth
from the previous year. However estimates were actual lower than the 2 million. Wind
point brought action of rescission pursuant to Securities Act because of misstatements.
Majority:
Three sections of the Act critical in defining prospectus 2(10), 10, and 12.

Majority decides to skip 2(10) and read 10 first which they determine that
information contained in the registration statement must be contained in prospectus
which they suggest is for public offerings because only public offerings require
registration statements. So theyc onclude that the prospectus must deal with
public hearings and this meaning of prospectus must be used throughout
interpretation of provision.
Majority attacks Alloyds claim by saying they just focus on the one word

communication and not the entire text.

Majority uses noscitur a sociis

Majority says that we should look at communication in relation to the other words
in the text circular, notice, advertisements

Dissent:
Dissent suggest that 2(10) would suggest that prospectus is merely the first

item in a long list of covered documents

Thinks that 2(10) is a catchall and operates as a a safety net of Congress to

make sure that it caught everything

GET NOTES FROM CASE AND READ PGS 243-49 AND GET NOTES!!!
Get pages 266-88 Notes from Casebook and do the reading!!!
As well as 289-96 and 299-307 read and get notes on cases!!!
Practice Problem!
IV.

The Regulatory Process

The Administrative Regulatory Process/ The Role and Function of Administrative

Agencies
Notes from book- pgs. 358-60
-

A great deal of both the initial lawmaking and the subsequent law-implementing
work is done by administrative agencies located (at least nominally) in the Executive
Branch of government.

Notes from book- pgs 583-88

The Statutory Framework: The Administrative Procedure Act (APA)
-

The APA establishes the basic default rules of procedure for federal agencies to
use when promulgating and enforcing regulations

The APA is a framework statute laying out the basic structure and procedures
for a set if important government institutions, and subjecting these institutions to legal
and political controls. Courts have relatively felt free to adapt the APA to changed

circumstances through a process of judicial interpretation, elaboration,and refinement

that in some ways more closely resembles conventional understandings of
constitutional, rather than statutory, interpretation.
Section 559 makes it explicitly known that the APA provisions do not limit or

repeal additional requirements imposed by statute or otherwise recognized by law

a.

The Forms of Administrative Action under the APA

APA defines two major types of agency action as a rulemaking and adjudication
Rule- an agency statement of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirement
Rulemaking- An agency process for formulating, amending, or repealing a rule
Adjudication- Agency process for the formulation of an order
Any process producing fial agency action that is not a rule is an adjudication
for APA purposes, including many actions such as licensing that do not fit the
model of an adversarial adjudicative hearing that resembles a trial.
APA divides the universe of possible agencies into four major categories and
specifies different procedural requirements for each1.

Formal rulemaking- governed by 556 and 557

2.

Informal rulemaking

3.

Formal adjudication

4.

Informal adjudication

Formal Rulemaking
Section 556 and 557 provide:

At a adversarial hearing the agency carries the burden of proof on contested

issue, and must show that the proposed rule is supported by reliable, probative, and
substantial evidence.
-

Presiding officers is an ALJ who are agency officials

Interested parties may participate in proceedings and present evidence and

conduct cross examination unless the agency affirmatively concludes that they will not
be prejudiced by the absence of such procedures

Informal Rule making a.k.a. notice and comment rulemaking governed by 553
553 does not require elaborate hearing process

553 requires 3 main procedural requirements

1.

An agency that proposes to make a rule through this process must give public
notice by publishing its notice of proposed rulemaking (NPRM)
The NPRM must include

1. a statement of the time, place, and nature of the public rule making
proceedings;
2. reference to the legal authority under which the rule is proposed
3. either the terms or substance of the proposed rule or a description of the
subjects and issues involved
2.

The agency must provide the public with an opportunity to comment on the
agencys proposal.
After the agency publishes its NPRM in Federal Register, the agency shall give

interested persons an opportunity to participate in the rule making through submission

of written data, views, or arguments with or without opportunity for oral presentation
3.

If the agency decides to finalize a rule, it must publish an explanation of the rule;
that is, agencies must incorporate in the rules adopted a concise general statement
of their basis and purpose.

In contrast with the express terms of the formal rulemaking provisions, however 553
contains no requirement that a final rule be based on any record compiled during the
proceedings
Formal Adjudication governed by 556 and 557, and additional requirements
described in 554
Trial like adversarial hearings that typically involve an agency seeking to impose

some sort of penalty on a regulated party, or to resolve a dispute between two or more
parties under a regulatory scheme administered by the agency
Formal adjudication requires an opportunity for oral presentation

Informal Adjudication
There is no section of the APA that specifies particular procedures for informal

adjudication
Informal adjudications are subject to procedural restrictions found in other

statutes, the agencys own regulations, and the constitution, but overall the procedural
requirements for informal adjudication are fairly minimal
In order to figure out which APA procedures apply to a given agency action, one
must ask two questions.
1.

Whether the action in question is a rule or an order?

If it is a a rule the agency must promulgate it through a rulemaking process.

If it is an order the agency must proceed by adjudication

2.

Whether its informal or formal?

Guidance in determining these two questions:

b.

Distinguishing between Rulemaking and Adjudication

Rulemaking is typically about prescribing new law or making new policy, typically
policy considerations concerned

Adjudication is about applying existing law or policy to some set of facts,

determinations of past and present rights and liabilities, like a determination of a

persons right to benefits under existing law
When must an agency use formal procedures
553 of APA states that rulemaking is governed by formal procedures if the

agency rule in question is required by statute to be made on the record after

opportunity for an agency hearing
Some statutes clearly use the triggering language found in 553(c) requiring

agencies to issue regulations on the record after opportunity for a hearing.

Other statutes say nothing of the sort and can proceed as informal rulemaking if it

chooses???
Get 551, 1, 4-9
553
This section applies, according to the provisions thereof, except to the extent that there is
involved
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property, loans, grants,
benefits, or contracts.
(b) General notice of proposed rule making shall be published in the Federal Register, unless
persons subject thereto are named and either personally served or otherwise have actual notice
thereof in accordance with law. The notice shall include
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues
involved.
Except when notice or hearing is required by statute, this subsection does not apply
(A) to interpretative rules, general statements of policy, or rules of agency organization,
procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of
reasons therefor in the rules issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an opportunity
to participate in the rule making through submission of written data, views, or arguments with or
without opportunity for oral presentation. After consideration of the relevant matter presented,
the agency shall incorporate in the rules adopted a concise general statement of their basis and

purpose. When rules are required by statute to be made on the record after opportunity for an
agency hearing, sections 556 and 557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30 days
before its effective date, except
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the rule.
(e) Each agency shall give an interested person the right to petition for the issuance, amendment,
or repeal of a rule.
Get 554, 556, and 556!!!

Get notes from text pgs 358-60 583-87; APA, 551, 1,4-9, 553, 554, 556 & 557. Gotta get
statutes listed under the APA
Notice and Comment Rulemaking: Casebook at 604-17; APA 553
Policy Making by Adjudication: Casebook at 643-62, 668-70 (excluding note 1);
671 (note 3) 672; APA 553 Get book notes!!! Need to read Bell Aerospace p.
668-70 also on pgs. 666-68
Agency Guidance Documents: Casebook at 677-89; 690 (note 3) 694; 704-714;
APA 553 Read!!!
An Example of Rulemaking Gone Awry: Materials at 60-90 (time permitting)
Practice Problem 3:
1.

Rulemaking or Adjudication?

- I would say rulemaking because we are dealing with a new policy that is being
implemented.
2.

Informal or Formal?

Because there is no on the record after opportunity for a hearing I would say
that this is an informal rule making

3.
Informal Rule making a.k.a. notice and comment rulemaking governed by 553
553 does not require elaborate hearing process

553 requires 3 main procedural requirements

1.

An agency that proposes to make a rule through this process must give public
notice by publishing its notice of proposed rulemaking (NPRM)
The NPRM must include

1. a statement of the time, place, and nature of the public rule making
proceedings;
2. reference to the legal authority under which the rule is proposed
3. either the terms or substance of the proposed rule or a description of the
subjects and issues involved
2.

The agency must provide the public with an opportunity to comment on the
agencys proposal.
After the agency publishes its NPRM in Federal Register, the agency shall give

interested persons an opportunity to participate in the rule making through submission

of written data, views, or arguments with or without opportunity for oral presentation
3.

If the agency decides to finalize a rule, it must publish an explanation of the rule;
that is, agencies must incorporate in the rules adopted a concise general statement
of their basis and purpose.

In contrast with the express terms of the formal rulemaking provisions, however 553
contains no requirement that a final rule be based on any record compiled during the
proceedings

Notes from 605-17

The Paper Hearing RequirementSection 553 of the APA requires that agencies provide information to the general public
at both the beginning and the end of the rule-making procedure. At the beginning of the
process, 553(b) requires that the agency provide advance notice of either the terms or
substance of the proposed rule or a description of the subjects and issues involved. If
the agency chooses to promulgate a final rule, 553(c) requires that the agency provide
a concise general statement of [the rules] basis and purpose.
553(b) and (c) only require a concise and general statement however courts have
interpreted these provisions as requiring more.
United States v. Nova Scotia Food Products Corp.
Issues raised regarding the informal rule-making procedure:
1.

What record does a reviewing court look to? The reviewing court should look at
the administrative record already in existence and not some new record made initially
in the reviewing court.

2.

How much of what the agency relied on should have been disclosed to interested
parties? Court thinks that agency should have made known the data that it was using
and relying on to the public because the pertinent information was readily available.
Thinks that agencys failure to disclose to interested persons the scientific data upon
which the FDA relied was procedurally erroneous.

3.

To what extent must the agency respond to criticism that is material? Court thinks
general statement is inadequate here. Court says under the circumstances the
agency needed to answer vital questions.

Notes from text:

1.

Must agencies disclose data and studies supporting a proposed rule?

553 (b) suggest that a general statement is fine. However courts have read the
notice requirement in conjunction with providing an opportunity for comment. Basically
saying how could be comment if statement is not specific enough.

553(b)(2) explicitly requires that the agencys notice include reference to the
legal authority under which the rule is proposed

643-72
Adjudication
Notes from text:
APA divided into rule making and adjudication
-

SEC v. Chenery a pre-APA case established that an agency may announce a

new policy decision in an adjudicative order rather than through a rule-making.

SEC modifies a rule through adjudication, basically creates a rule through

adjudication

SEC v. Chenery:
-

Court expressed that it preferred rule making through quasi-legislative

promulagtion of rules to be applied in the future

Reasons court gave why SEC could create a rule through an adjudication:
-

court wanted to preserve the agencies flexibility with unforeseen problems as

they arise

(Justice Jackson thought they were just giving court license to make up rules as
they went along)

Notes from text pgs 657-672

The Legitimacy of Policymaking through Adjudication
Chenery:
Jacksons dissent: Administrative authoritarianism in his view the majority in Cheneray
gave agencies a license to make the rules up as the go along- governing without law
Murphy majority opnion: asserted that Tthe Sec was only applying an existing statutory
requirement to new and unforeseen circumstances (The SEC asserted correctly that

under the statute it could approve a reorganization plan only if that plan was fair and
equitable and the SEC further asserted for the first time in any binding agency
statement- that a reorganization plan would not be fair and equitable.
Rulemaking Procedures and the Circumvention Concern
-

Formal adjudication is heavily proceduralized in some way more than rulemaking

One might be concerned that agencies may use formal administrative

adjudication to circumvent notice-and-comment rulemaking procedures.
Notice-and-comment rulemaking procedures are generally better designed to

elicit input from a broad range of constituencies, and to encourage the agency to view
its proposed rule from a more general holistic perspective
Adjudication rulemaking may enable agencies to make general policy decisions

under the political radar

If rulemaking were obligatory however an agency that wanted to create a new

rule to apply in a particular case would have to suspend the adjudication and intiate a
separate rulemaking process
Retroactivity- Sec applied its new rule even though Chenery group had no way of
anticipating that the SEC would impose such a requirement
The Court in Chenery instead emphasized that retroactivity was not per se

unlawful, as every case of first impression has a retroactive effect, whether the new
principle is announced by a court or by an administrative agency. Retroactivity would
render an adjudicative order invalid, according to the Court, only when the ill effect of
the retroactive application of a new standard outweighs the mischief of producing a
result which is contrary to a statutory design or to legal and equitable principles.
Wholesale & Dept. Store Union v. NLRB explained that an assessment of the

legality of retroactive administrative action under Chenery required consideration of

five factors:
1.

whether the particular case is one of the first impression

2.

whether the new rule represents an abrupt departure from well established
practice or merely attempts to fill a void in an unsettled area of law

3.

the extent to which the party against whom the new rule is applied relied on the
former rule

4.

the degree of the burden which a retroactive order imposes on a party

5.

the statutory interest in applying a new rule despite the reliance of a party on the
old standard (Aerospace Workers v. NLRB reformulating the five-factor test as a
three-factor test but without substantively changing the inquiry)

The Consequences of Chenery II

-

Most significant consequence of Chenery is that certain agencies most notably

he National Labor Relatipns Board do virtually all of their policymaking in adjudicative
orders rather than rulemaking

However most agencies engage in a significant amount of rulemaking activity

Agencies recognize that they will be able to make higher-quality decisions if they
solicit broad public input associated with rulemaking

NLRB v. Aerospace
-

Issue was whether the agency could overturn a precedent in an adjudication?

The COA said no. THe Supreme Court said yes.

Supreme Court said Board is not precluded from announcing new principles in
an adjudicative proceeding and that the choice between rulemaking and adjudication
lies in the first instance within the Boards discretion. Although there may be situations
where the Boards reliance on adjudication would amount to an abuse of discretion or
a violation of the ACT nothing in the present case would justify such a conclusion.

Bell Aerospace acknowledged that there may be a retroactivity concern but

Aeroespace reaffirmed the Chenery II balancing approach to retroactivity requiring a
showing either of substantial adverse reliance on the past agency policy, or the
imposition of some penalty (e.g fines or damages) for past conduct that was consistent
with the agencys then-prevailing policy.

If a new agency policy implicates substantial reliance interests or subjects

regulated entities to new liability, an agency cannot announce that new policy in an
adjudication.
Notes from pgs 677-89
b.

General Statement of Policy

553(b)(a) says that notice and comment requirements do not apply to an agencys
general statements of policy. An agencys policy statement (sometimes referred to as
a guidance document)is an agency memorandum, letter, speech, press release,
manual or other official declaration by the agency of its agenda, its policy priorities, or
how it plans to exercise its discretionary authority. These provide advance warning
about how the agency is likely to resolve questions that come before it.
Problem with them is that they can bypass the safeguards built in notice

and comment rulemaking process.

P G & E v. Federal Power:
Involved a situation where the nation was going through a natural gas

shortage. Policy statement was issued by the FPC in which they suggested that
residential users should have priority
Pros listed of statements of policy in this case:
Encourages public dissemination of the agencys policies prior to their

actual application
-

Facilitates long range planning

Difference between a policy statement and a substantive rule is that a substantive

rule establishes a standard of conduct which has the force of law
A general statement of policy, on the other hand does not establish a binding
norm.
Court will more likely use more review over a general policy statement because it
is adopted without public participation thus scope of review will probably be
broader.

The rulemaking process has a more thorough exploration of the relevant issues.
And a policy statement when it is encountered with judicial review may be the
first time it is subjected to full criticism by interested parties. Consequently a
policy judgment expressed as a general statement of policy is entitled to less
deference than a decision expressed as a rule or an adjudicative order.
1.

The Force of Law Test- Substantive rules have the force of law meaning
that the only question in the subsequent administrative proceedings is whether
the regulated parties conformed their conduct to the rule. In contrast a policy
statement merely declares in advance how the agency intends to exercise its
discretion in the future; the agency cannot rely on the policy statement in
subsequent proceedings.
P&G E explained that when the agency applies the policy they must be

able to support the policy just as if the policy had never been issued.
If the agency rejects based on a policy statement then they need to be able

to support why at adjudication.

3.

Limitation on the Agencys Subsequent Discretion

Notes from pgs 704-14

2.

The Defining Characteristics of Interpretive Rules- an interpretive rule is an

agencys declaration of what it thinks some statutory or regulatory command
actually means. Interpretations are based on the flexibility/inflexibility of the
rule or the coercive affects, so whatever the underlying rule is is what the
interpretive rule is.

Suppose an agency issues a statement that is framed in mandatory and inflexible

terms, if the agency were to use a general policy statement concerning the rule
than the general policy statement would be characterized as inflexible and the
court would reject it, however if the agency chooses to characterize the statement

as an interpretive rule than then the fact that the agencys statement is inflexible,
mandatory, and coercive may not matter.
-

an interpretive statement simply indicates an agencys reading of a statute

or a rule.

the court is looking for reasoned statutory interpretation, with reference to

the language, purpose, and legislative history of the relevant provision.

Hoctor v. United States Dept of Agriculture:

-

found the height requirements for the animal cages arbitrary thus there
was the question of whether it really was an interpretive rule (bright-line
numerical rule)

Posner held that such arbitrary decisions need to go through notice and
comment

Notes from stuff after the case

-

the purpose of the interpretive rules is to tell how the statute is to be

applied, gives people a heads up of how the agency will interpret commands

Does public a favor by announcing the interpretation in advance of

enforcement

the more terms are looked at as being presumptive rather than absolute
more likely to be found to be interpretive rules (one counter to this is that this
does not help because if the underlying statute is rigid than the interpretation
will be rigid and also the other way around)

another argument is to focus on the generality or specificity of the

underlying statute or regulation that the agency is allegedly interpreting.
Basically the more general a statute the more interpretive rules discouraged
because it would more likely be making policy with notice and comment section,
the more specific an underlying statute the more interpretive rules should be
used. (2 difficulties to this approach is that how can the courts tell when a
underlying command is too vague to allow the agency to interpret it by issuing

much more detailed and specific commands? Secondly what is the purpose of
the requiring the agency to go through a notice and comment if they can just
easily announce it in an enforcement action.
Notes from 473-76, 551-66, 572-78
Congress and Presidential Influence over Agency Policy
Power of the purse gives Congress 3 important sources of influence over
agencies.
1.

Congress may attach substantive riders to appropriation of bills that

restrict the authority of the agency to make certain decisions, for ex. forbidding
the money on certain things or favoring the money for certain things

2.

Congressioal purse gives members of Congress power over agency

because they want to please them so that they can get more funds

3.

Congress can control how aggressive an agency can be by controlling the

resources that are at the agencys disposal,

Hearings, Investigations,Audits, and other Forms of Oversight

-

all can be used to threaten the agency in some way

Illustrates that sometimes you have to consider these factors when you are
interpreting a statute.

Notes from 551-66

Centralized Regulatory Review
-

Reagan dramatically expanded centralized White House review of agency

regulations with EO 12291 which required all executive branches to submit
proposals for major regulations (PROS where that agency actions were more
closely tied to ideals of Presient, CONS is that some say is implemented a
burdensome review procedure that it itself a deterrent to new regulations.

President Clintons replaced EO with his EO 12866:

remains the governing authority for the regulatory review process

Executive Order 12866:

Sec 1 Statement of Regulatory Philosophy and Principles

(a)

The Regulatory Philosophy. maximize net benefits pgs 554-562

(b)Principles of Regulation.:
1.

Each agency must identify the problem it intends to address as well as

assess the significance of the problem

2.

GET THE REST!!!

Notes from text:

1.

Centralized Reg Review and Presidential Oversight of the Administration

EO 12866 seeks to assert greater Presidential control over the

administrative state by subjecting agency regulatory policymaking to greater
White House supervision

One critic is that neither the President nor the OMB have the requisite
expertise in the substantive policy areas to second-guess the programmatic
agencies, yet in practice this is precisely the sort of second-guessing that OMB
oversight both allows and encourages

OMB supervises interagency review process, and OIRA gets the executive
branch agencies submitted proposals for major regulations

OIRA is responsible for providing guidance and oversight so that an

agencys regulatory are consistent with applicable law, the Presidents priorities,
and the principles set forth in the Executive Order and do not conflict with
policies ot actions of another agency

Presidential Directives p. 572-78

-Executive Order 12866 is designed principally to review regulatory proposals
that originate with the programmatic agencies.
-OIRA not alone reviews proposals but sometimes sends letters to agencies
prompt letters encouraging agencies to take regulatory action to deal with
some perceived problem.

-Separate and apart from OIRAs letters the President sometimes issues
directives to specific agencies. These directives usually have the effect of
encouraging or demanding that the agency take some regulatory action.
Memorandum on Clean Water Protection- Directive
1. Does the President have the legal authority to direct agency action?
Materials pgs 92-99

Spirit of the Sage Council v. Norton (shows that agency should have presented
PRR through rule making instead of saying it was an interpretive rule)
United States District Court for the District of Columbia, 2003.
Finding that the PRR was promulgated in violation of the APA's notice and comment
requirements, the Court will vacate and remand the PRR for further consideration by the
Services.
because the government explicitly relies on the PRR to bolster its contention that the No
Surprises Rule is consistent with the requirements of the ESA, it is remands the No
Surprises Rule for consideration as a whole with the PRR.
1. Public Notice and Comment
Under the APA, federal agencies generally must publish notice of proposed
rulemaking in the Federal Register to give interested persons an opportunity to comment
and participate in the rulemaking. 5 U.S.C. 553(b). That notice-and-comment provision
applies to "legislative" or "substantive" rules that establish legal requirements, but not to
"interpretive rules, general statements of policy, or rules of agency organization,
procedure, or practice." 5 U.S.C. 553(b)(A).
Notes from pgs 756-75- Review of Agency Policy Choices:
C.

Modern Hard Look Review- means the court hard look at the agencys
reasoning

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile

Insurance Co. (Hard Look case)
-Case about Congress enacting the National Traffic and Motor Vehicle Safety Act
(NTMVSA)- directed the secretary of transportation to issue motor vehicle safety
standards

Act authorized judicial review

Court finds that the agency failed to present an adequate basis and
explanation for rescinding the passive restraint requirements and that the
agency must either consider the matter further or adhere to or amend Standard
208 along lines which its analysis supports
The Hard Look Standard found in State Farm:
-The scope of review under the arbitrary and capricious standard is narrow and
a court is not suppose to substitutes its judgment with that of the agency. the
agency must nevertheless examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection between the facts found
and the choice made.
-

(a)

Agency action is arbitrary and capricious if the agency has entirely failed to
consider an important aspect of the problem.
arbitrary and capricious if the agency has failed to address a significant
criticism of, or proposed alternative to, the agencys final policy choice.
NHTSA failed to consider other alternatives (this raises two issues 1. what
counts as an important aspect of the problem 2. under what conditions has an
agency completely failed to consider an important aspect of the problem)
(b)

Agency action is arbitrary and capricious if it relies on factors which

Congress has not intended it to consider.
An otherwise reasonable agency explanation of an agency action may be
unreasonable if it neglects the factors Congress has identified as important
and/or relies on considerations that Congress has indicated ought not to be
considered
(c)
Agency action is arbitrary and capricious if the agency has offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.
court may set aside an agency action as arbitrary if the agency has made
a clear error in judgment. (NHTSA failed to address that people will more likely
than not where seat belts)
Materials 99-103

The EPA Sulfur Dioxide Standards for New Power-Plants

NOTES FROM PAGES 814-27

CHEVRON REVIEW OF AGENCY STATUTORY INTERPRETATION
CHEVRON V. NRDC
FACTS:
AMENDED CLEAN AIR ACT CALLED FOR STATES THAT STILL HAD NOT ACHIEVED
NATIONAL AIR QUALITY STANDARDS SET BY THE EPA ESTABLISH A PERMIT PROGRAM
REGULATING NEW OR MODIFIED STATIONARY SOURCES OF AIR POLLUTION.

IN ORDER FOR A PERMIT TO BE GIVEN TO THESE STATIONARY SOURCES, STRINGENT

CONDITIONS HAD TO BE MET

THE EPA REGULATION ALLOWED STATES TO ADOPT A PLANTWIDE DEFINITION OF THE

TERM STATUTORY SOURCE WHICH UNDER THIS DEFINITION OF THE TERM STATIONARY
SOURCE PLANTS WERE ALLOWED TO MODIFY ONE PIECE OF EQUIPMENT AND AS LONG AS
THE ALTERATION DID NOT INCREASE THE TOTAL EMISSIONS FROM A PLANT THEY NEED NOT
MEET THE PERMIT CONDITIONS

ISSUE: WHETHER THE EPAS DECISION TO ALLOW STATES TO TREAT ALL OF THE
POLLUTION-EMITTING DEVICES WITHIN THE SAME INDUSTRIAL GROUPING AS THOUGH THEY
WERE ENCASED WITHIN A SINGLE BUBBLE IS BASED ON A REASONABLE CONSTRUCTION OF
THE STATUTORY TERM STATIONARY SOURCE?
HOLDING: COURT CONCLUDES THAT CONGRESS WAS SILENT AND THAT THE LEGISLATIVE
HISTORY DID NOT SHOW CONGRESS SPECIFIC INTENTION ON THE APPLICABILITY OF THE
BUBBLE CONCEPT AND THAT THE EPAS USE OF THAT CONCEPT HERE IS REASONABLE
POLICY CHOICE FOR THE AGENCY TO MAKE

2 QUESTIONS PRESENTED WHEN A COURT REVIEWS AN AGENCYS CONSTRUCTION OF THE

STATUTE WHICH IT ADMINISTERS.
1.
WHETHER CONGRESS HAS DIRECTLY SPOKEN TO THE PRECISE QUESTION AT ISSUE?
(REVIEWING COURT CAN USE TRADITIONAL TOOLS OF STATUTORY CONSTRUCTION, IF THEY
CAN FIND A CLEAR INTENT OF CONGRESS THAN THEY USE THAT IF NOT THAN THEY MOVE
TO STEP TWO)- THIS VIEW NOT ALWAYS USED SOME TIME THEY GO STRAIGHT TO THE
AGENCYS INTERPRETATION
2.(IF SILENT) THE REVIEWING COURT SHOULD UPHOLD THE AGENCYS RESOLUTION OF THE
STATUTORY AMBIGUITY SO LONG AS THE AGENCY HAS ADOPTED A PERMISSIBLE
CONSTRUCTION OF THE STATUTE THAT IS SO LONG AS THE AGENCYS INTERPRETATION IS
REASONABLE. (SOMETIMES VIEWED AS ANALOGOUS TO STATE FARM STYLE REVIEW UNDER

THE ARBITRARY AND CAPRICIOUS STANDARD OF

APA: THE AGENCY MUST ADEQUATELY

EXPLAIN ITS CHOICE, RESPONDING TO REASONABLE OBJECTIONS AND PROPOSED

ALTERNATIVES)

(IF COURT DETERMINES THAT CONGRESS HAS NOT SPOKEN ON THE PRECISE ISSUE AT HAND
THAT COURT DOES NOT IMPOSE ITS OWN CONSTRUCTION OF THE STATUTE, AS WOULD BE
NECESSARY IN THE ABSENCE OF AN ADMINISTRATIVE INTERPRETATION. IF STATUTE IS SILENT
THAN COURT DETERMINES IF THE AGENCIES ANSWER IS BASED ON A PERMISSIBLE
CONSTRUCTION OF THE STATUTE.)

COURT LOOKS AT THE LEGISLATIVE HISTORY AND SAYS:

DOES NOT CONTAIN SPECIFIC COMMENT ON BUBBLE CONCEPT OR INFORMATION ON
WHETHER A PLANT WIDE DEFINITION OF STATIONARY SOURCE IS PERMISSIBLE

DOES FIND WHERE CONGRESS EXPRESSED THE CONFLICT OF ACCOMODATING

ECONOMIC INTERESTS IN PERMITTING CAPITAL IMPROVEMENTS AND ENVIRONMENTAL

INTERESTS IN IMPROVING AIR QUALITY

FIND LEGISLATIVE HISTORY AND STATUTE SILENT ON THE PRECISE

ISSUE AT HAND

COURT:
THE LEGISLATIVE HISTORY ILLUSTRATES THE POLICY CONCERNS THAT MOTIVATED THE
ENACTMENT AND THAT THE PLANTWIDE DEFINITION FALLS WITHIN ONE OF THE CONCERNS
OF CONGRESS WHICH WAS THE ALLOWANCE OF REASONABLE ECONOMIC GROWTH AND

EPA ADVANCED A REASONABLE EXPLANATION FOR ITS CONCLUSION THAT THE

REGULATIONS SERVE ENVIRONMENTAL OBJECTIVES AS WELL (PUBLIC RECORD THROUGH
RULEMAKING PROCESS AS WELL AS BY CERTAIN PRIVATE STUDIES)
THE COURT REVIEWED HOW THE EPA INTERPRETED SOURCE AND FOUND THAT
THAT THE

THEY INTERPRETED FLEXIBLY

NOTES FROM TEXT:

1.
THE STRUCTURE OF THE CHEVRON DOCTRINE
ESTABLISHES THAT AGENCY HAS REASONABLY RESOLVED A STATUTORY AMBIGUITY,
THE REVIEWING COURT SHOULD ACCEPT THE AGENCYS RESOLUTION EVEN IF THE COURT
WOULD HAVE RESOLVED THE QUESTION DIFFERENTLY

CHEVRON DOES NOT REQUIRE THAT AGENCIES USE A VALID INTERPRETIVE METHOD
SOME HAVE ARGUED THAT THE TWO STEP STRUCTURE IS REDUNDANT AND

MISLEADING

2.

NORMATIVE EVALUATION OF CHEVRON

PROMINENT OBJECTION TO CHEVRON IS THAT

MARBURY ESTABLISHED THAT THE

COURTS INTERPRET WHAT THE LAW IS

PROS OF CHEVRON DEFERENCE:

WHEN A STATUTE IS SILENT THAN AN AGENCY IS BEST TO INTERPRET IT BECAUSE
THEY HAVE MORE EXPERTISE THAN THE COURTS (COUNTER TO THIS IS THAT THE COURTS
HAVE MORE EXPERTISE IN LEGAL INTERPRETATION)
SHOULD REFER TO AGENCY BASED ON DEMOCRATIC ACCOUNTABILITY
CHEVRON DEFERENCE PROMOTES COORDINATION IN THE INTERPRETATION OF
FEDERAL LAW. CHEVRON DEFERENCE ENHANCES FEDERAL AGENCIES ABILITY TO
IMPLEMENT LEGAL INTERPRETATIONS THAT ARE CONSISTENT ACROSS THE COUNTRY WITH
ONE ANOTHER.

IF COURTS WERE LEFT TO INTERPRET NOT A GOOD IDEA BECAUSE THEY HAVE LESS
ACCOUNTABILITY AND AGENCIES HAVE MORE

CONS OF CHEVRON DEFERENCE:

IT CONCENTRATES TOO MUCH POWER- BOTH LAWMAKING AND LAW-INTERPRETING
POWER IN THE EXECUTIVE BRANCH- THAT THE SEPARATION OF LAW INTERPRETING AND LAW
ENFORCING PREVENTS ARBITRARY AND ABUSIVE GOVERNMENT

CHEVRON ERODES CHECKS AND BALANCES

CHEVRON MAY DIMINISH POLITICAL ACCOUNTABILITY OVER THE LONG RUN BY MAKING
DELEGATION MORE ATTRACTIVE TO CONGRESS BECAUSE THEY COULD CREATE VAGUE
STATUTE AND HAVE INFLUENCE OVER HOW AGENCY INTERPRETS THE AMBIGUOUS STATUTES

(COUNTER IS THAT CONGRESS SOMETIMES DISTRUST AGENCIES ESPECIALLY IN TIMES OF

DIVIDED GOVERNMENTS)
CLARITY OF A STATUTE UNDER STEP 1 OF CHEVRON PGS 835-53
CHEVRON AND TEXTUAL INTERPRETATION
STEP 1 OF CHEVRON REQUIRES THE COURT TO USE TRADITIONAL TOOLS OF
STATUTORY CONSTRUCTION SUCH AS TEXTUAL ANALYSIS, INFERENCES FROM STATUTORY
STRUCTURE AND CONTEXT, INFERENCES FROM STATUTORY PURPOSE, LEGISLATIVE HISTORY,
AND SEMANTIC AND SUBSTANTIVE CANONS OF CONSTRUCTION.
REVIEWING COURT SHOULD DEFER TO THE AGENCYS INTERPRETATION ONLY IF THE
APPLICATION OF THOSE TECHNIQUES FAILS TO YIELD A CLEAR ANSWER TO THE
INTERPRETIVE QUESTION.

A.CHEVRON, TEXTUAL ANALYSIS, AND STRUCTURAL INFERENCE

MCI V. ATT HIGHLIGHTS BOTH THE IMPORTANCE OF THE STATUTORY TEXT AS A

CONSTRAINT ON AGENCY DISCRETION AND THE DIFFICULTIES INVOLVED IN DECIDING WHEN

THE TEXT IS CLEAR

MCI V. ATT
CASE WHERE THE FCC INTERPRETED MODIFY MEANING THAT THEY COULD CHANGE
THE REQUIREMENTS OF FILING TARIFFS IN ORDER TO ALLOW OTHER COMMUNICATION

ATT FILING THE TARIFF. THE MAJORITY BY

SCALIA USED A TEXTUALIST APPROACH AND SAID THAT MODIFY MEANS TO CHANGE
SLIGHTLY.
SCALIA USED THE WHOLE PROVISION TO ILLUSTRATE THAT THAT CERTAIN PROVISIONS
SERVED AS EVIDENCE THAT CONGRESS DID NOT INTEND ONLY FOR ATT TO FILE TARIFFS
THE DISSENT COUNTERS THAT BY SAYING THAT THE PROVISION WAS ENACTED SOLELY
BECAUSE ATT HAD A MONOPOLY AT THE TIME
CARRIERS TO ENTER THE MARKET AND KEEP

NOTES AFTER CASE:

- SOME SCHOLARS HAVE SAID THAT IN LIGHT OF MCI AND CASES LIKE IT THAT TEXTUALIST
JUDGES ARE LESS LIKELY TO DEFER TO AGENCY INTERPRETATIONS UNDER CHEVRON
BECAUSE TEXTUALISTS ARE MORE LIKELY TO DISCERN A CLEAR STATUTORY MEANING.
TEXTUALIST MIGHT MORE OFTEN THAN NOT, NOT DEFER TO CHEVRON BECAUSE THEY
WILL USUALLY TRY TO FIND THE TEXT ITSELF NOT AMBIGUOUS

2.
-

WHAT CONSTITUTES AMBIGUITY?

MCI- JUSTICE SCALIA SAYS THAT A JUDGE APPLYING THE TRADITIONAL TOOLS OF

STATUTORY CONSTRUCTION CAN USUALLY ASCERTAIN A CLEAR SIGNAL ABOUT STATUTORY

MEANING

SILBERMAN EXPRESSED A DIFFERENT VIEW THAT MOSTLY THERE ARE LEGITIMATE

AMBIGUITIES FOR A STATUTE OR A CLAIM BASED ON A PARTICULAR STATUTE TO BE
BROUGHT TO COURT.

MORE OFTEN THAN NOT LEGITIMATE AMBIGUITIES WHICH GIVE ROOM

FOR DIFFERING GOOD-FAITH INTERPRETATIONS, MORE OFTEN THAN NOT APPEAR IN OUR
CASES.
3.
THE ROLE OF STRUCTURAL, CONTEXTUAL, AND PURPOSIVE ARGUMENT IN CHEVRON
ANALYSIS

PAGES 853-67, 885-88- CANONS, TERMS OF ART, AND LEGISLATIVE HISTORY AT STEP 1 OF
CHEVRON
B.
CHEVRON, SEMANTIC CANONS AND TERMS OF ART

TERM OF ART VERSUS ORDINARY MEANINGS, AN AGENCY COULD HAVE APPLIED THE

ORDINARY MEANING OF A WORD TO THE STATUTE WHEN THE EVIDENCE WOULD SUPPORT

CONGRESS USED IT AS A TERM OF ART INSTEAD OF IT AS AN ORDINARY MEANING,

AND VICE VERSA.
HOWEVER WHEN THERE IS AMBIGUITY THE COURT SHOULD DEFER TO THE AGENCY
VIEW UNDER CHEVRON AS LONG AS THAT VIEW IS REASONABLE.
COURTS FREQUENTLY USE CANONS OF CONSTRUCTION AS GUIDES TO TEXTUAL
MEANING, THEY ARE PRESUMPTIONS THAT STATUTORY TERMS HAVE CONSISTENT MEANING
THROUGHOUT THE STATUTE, THAT EACH STATUTORY TERM IS MEANINGFUL AND THAT
REDUNDANCY IS DISFAVORED, EXPRESSIO UNIUS, NOSCITUR A SOCIIS, GENERAL CATCHALL
THAT

TERMS AT THE END OF A LIST ARE TO BE CONSTRUED AS INCLUDING ONLY ITEMS OF THE
SAME GENERAL TYPE AS THOSE SPECIFICALLY LISTED (EJUSDEM GENERIS).

BABBIT V. SWEET HOME (SECRETARY KINDA READS BROADLY BUT IT WAS WITHIN THE
INTENT OF CONGRESS)
FACTS: ESA UNDER SECTION 9 IT SAYS THAT IT IS UNLAWFUL FOR A PERSON TO TAKE ANY
ENDANGERED OR THREATENED SPECIES. THE SECRETARY PROMULGATED A REGULATION IN
WHICH TAKING INVOLVE SIGNIFICANT HABITAT MODIFICATION OR DEGRADATION WHERE IT
ACTUALLY KILLS OR INJURES WILDLIFE.

ISSUE: IS WHETHER THE SECRETARY EXCEEDED HIS AUTHORITY BY PROMULGATING THAT

REGULATION?
COURT LOOKS AT THE FACT THAT THE DEPARTMENT THAT IMPLEMENTED THE STATUTE
DEFINED THE STATUTORY HARM WHICH WAS INCLUDED UNDER TAKING TO MEAN
SIGNIFICANT HABITAT MODIFICATION

RESPONDENTS WANT TO LOG BUT THIS ACTIVITY WOULD MESS WITH THE NATURAL HABITAT
OF THE SPECIES

COURT LOOKS AT DICTIONARY MEANINGS, THE PURPOSE OF THE STATUTE, CONGRESSS

INTENT TO PROTECT ENDANGERED SPECIES FOUND THROUGH LEGISLATIVE HISTORY, TO
SUPPORT THE SECRETARYS INTERPRETATION.
COURT GIVES DEFERENCE TO THE AGENCYS REASONABLE INTERPRETATION

ILLUSTRATES THAT GIVEN THE CANONS YOU CAN COME UP WITH TWO DIFFERENT VIEWS ON
HOW YOU THINK THE OUTCOME SHOULD BE DECIDED.
NOTES FROM TEXT:
2. THE RELATIONSHIP BETWEEN OPERATIVE PROVISIONS AND STATUTORY DEFINITIONS
SCALIAS MAIN ARGUMENT IS THAT TAKE SHOULD NOT BE EXPOUNDED TO INCLUDE
THINGS THAT ARE NOT CONTAINED IN ITS TRADITIONAL MEANING. THAT THE OPERATIVE
WORD SHOULD BE FOCUSED ON RATHER THAN THE RATHER THAN THE DEFINITIONAL TERMS.

STEVENS WOULD SUGGEST THAT ONCE AN OPERATIVE STATUTORY TERM IS DEFINED IN

THE STATUTE ITSELF, THAT STATUTORY DEFINITION ALONE DETERMINES THE OPERATIVE
TERMS MEANING, AND ANY ADDITIONAL LIMITATIONS OR CONNOTATIONS CONTAINED IN THE
OPERATIVE TERM ITSELF DO NOT MATTER

3.
-

CHEVRON AND SEMANTIC CANONS:

SCALIA USED THE NOSCITUR A SOCISS CANON WHILE THE MAJORITY USED THE
PRESUMPTION AGAINST STATUTORY SURPLUSAGE. THIS ILLUSTRATES LLEWELLYNS CLAIM
THAT FOR EVERY CANON THERE IS A COUNTER CANON THAT LEADS TO THE OPPOSITE
CONCLUSION

CHEVRON AND LEGISLATIVE HISTORY PG 885-88

2 HIERARCHYS OF INTERPRETIVE RULES:
1.
FIRST ONE SAYS LOOK AT TEXT, IF AMBIGUOUS LOOK AT THE LEGISLATIVE HISTORY, IF
THAT IS NOT CLEAR THAN DEFER TO AGENCYS VIEW.
2.
THE OTHER SAYS LOOK AT TEXT, IF IT IS AMBIGUOUS THAN DEFER TO AGENCY, THEN
LOOK TO LEGISLATIVE HISTORY ONLY IF THERE IS NO AGENCY INTERPRETATION

INTERPLAY OF CHEVRON AND CONSTITUTIONAL AVOIDANCE PGS 889-900

A. CONSTITUTIONAL AVOIDANCE
DEBARTOLO V. FLORIDA GULF COAST
FACTS: FLORIDA GULF COAST WAS INVOLVED IN A LABOR DISPUTE WILSON COMPANY IN
WHICH FGC WAS SUPPOSE TO DO SOME CONSTRUCTION ON DEBARTOLOS MALL. HOWEVER
THERE WAS A DISPUTE AND FGC SHOWED UP AT MALL HANDING FLYERS SAYING THAT THEY
WERENT PAID ENOUGH AND THAT THE PEOPLE SHOULD SHOP SOMEWHERE WHERE
CONSTRUCTION WORKERS WERE BEING PAID.
-NLRB FOUND THAT UNIONS ACTIONS (HANDBILLS) WERE IN VIOLATION

COURT SAYS THAT NORMALLY AGENCYS ARE GIVEN DEFERENCE UNLESS THERE
INTERPRETATIONS WERE CLEARLY CONTRARY TO THE INTENT OF CONGRESS.
COURT SAYS THAT WHERE A CONSTRUCTION OF A STATUTE WOULD RAISE SERIOUS
CONSTITUTIONAL PROBLEMS, THE COURT WILL CONSTRUE THE STATUTE TO AVOID SUCH
PROBLEMS UNLESS SUCH CONSTRUCTION IS PLAINLY CONTRARY TO THE INTENT OF
CONGRESS

COURT SAYS PASSING THE HANDBILLS WERE DONE PEACEFULLY AND THAT WERE
WITHIN THEIR RIGHTS UNDER THE 1ST AMENDMENT

NOTES AFTER CASE:

DID DEBARTOLO GET THE ORDER OF PRIORITY RIGHT?
DEBARTOLO SEEMS TO SUGGEST THAT THE CONSTITUTIONAL AVOIDANCE CANON
TAKES PRECEDENCE OVER CHEVRON

RUST V. SULLIVAN:
FACTS: FACIAL CHALLENGE TO DEPT. OF HEALTH AND HHS REGULATIONS WHICH LIMIT THE
ABILITY OF TITLE X FUND RECIPIENTS TO ENGAGE IN ABORTION-RELATED ACTIVITIES
THE CHANGES TO THE ACT PROHIBITED ANY ABORTION ADVICE AND DID NOT HAVE
PRENATAL OR PREGNANCY CARE

COURT FINDS THE LANGUAGE AMBIGUOUS

COURT FINDS THAT THERE IS NO MAJOR CONSTITUTIONAL ISSUE HERE, SO STATUTE IS
UPHELD

NOTES FROM TEXT:

DISTINGUISHING RUST FROM DEBARTOLO
RUST SEEMS TO APPLY CHEVRON FIRST WHEN DEBARTOLO SEEMS TO APPLY
CONSTITUTIONAL AVOIDANCE FIRST
RUST SEEMS TO SAY THAT TITLE X RESTRICTS SOME FEDERAL FUNDING FOR
ABORTION AND AS A PRACTICAL MATTER ANY FEDERAL RESTRICTION PERTAINING TO
ABORTION IS LIKELY TO BE CHALLENGED

B.
FEDERALISM - CHEVRON AND FEDERALISM PGS. 900-16
(A) TRADITIONAL STATE FUNCTIONS
SUPREME COURT USES THE SUBSTANTIVE CANON CALLED CLEAR STATEMENT
RULES- TO SAFEGUARD WHAT ARE SOMETIMES DESCRIBED AS CONSTITUTIONAL VALUES.

THE COURT WILL NOT READ A FEDERAL STATUTE TO INTRUDE INTO CORE ASPECTS OF
STATE SOVEREIGNTY, OR TO DISPLACE TRADITIONAL STATE AUTHORITY, UNLESS THE
STATUTE CLEARLY MANDATES SUCH A RESULT
CHEVRON MAY COME INTO CONFLICT WITH THESE CLEAR STATEMENT RULES

SOLD WASTE AGENCY OF NORTHERN COOK V. UNITED STATES ARMY CORPS

FACTS:
CORPS UNDER CWA CONFERRED FEDERAL AUTHORITY OVER AN ABANDONED SAND AND
GRAVEL PIT

COURT DECIDES NOT TO USE CHEVRON DEFERENCE HERE

COURT WILL NOT ALLOW AN ADMINISTRATIVE AGENCY TO INTERPRET A STATUTE THAT
WOULD ALTER THE FEDERAL-STATE FRAMEWORK BY PERMITTING FEDERAL ENCROACHMENT
UPON A TRADITIONAL STATE POWER UNLESS THERE IS A CLEAR INDICATION THAT

CONGRESS INTENDED THAT RESULT

-

COURT DOES NOT ALLOW THE PETITIONER TO INTERPRET THE TERM NAVIGABLE IN
A WAY THAT WOULD LET IT INFRINGE ON STATE RIGHTS, AND GET AT WATERS THAT ARENT
NAVIGABLE???

NOTES FROM CASE:

1.
SHOULD FEDERALISM CANONS LIMIT CHEVRONS SCOPE?
REHNQUIST USED THE AVOIDANCE CANON OVER CHEVRON CITING DEBARTOLO ,
BASICALLY SOME THINK THAT FEDERAL REGULATIONS THAT INTERFERE WITH
TRADITIONAL STATE FUNCTIONS MUST BE CLEARLY AUTHORIZED BY A FEDERAL STATUTE
AND THAT THIS PRINCIPLE TAKES PRECEDENCE OVER CHEVRON

(CLEAR STATEMENT RULE)

2.
(B )
-

THE RELATIONSHIP BETWEEN OPERATIVE PROVISIONS AND DEFINITIONAL PROVISIONS

PREEMPTION
SOME COMMENTATORS HAVE SUGGESTED THE COURTS SHOULD FORGO CHEVRON
DEFERENCE TO AGENCY DECISIONS REGARDING PREEMPTION OF STATE LAW, PRINCIPALLY
ON THE GROUNDS THAT REFUSING CHEVRON DEFERENCE IN THIS CONTEXT WOULD
CHANNEL THE DECISION TO PREEMPT STATE LAW INTO THE LEGISLATIVE PROCESS, WHERE
THE BICAMERALISM AND PRESENTMENT REQUIREMENTS SERVE TO PROTECT THE INTERESTS
OF THE STATES

(OTHERS HAVE QUESTIONED THIS CONCLUSION, ARGUING THAT THE

ADMINISTRATIVE PROCESS MAY PROTECT STATE INTERESTS AT LEAST AS EFFECTIVELY AS

THE LEGISLATIVE PROCESS.

OTHERS HAVE SUGGESTED THAT COURTS SHOULD APPLY THE

INTERMEDIATE STANDARD SET FORTH IN SKIDMORE V. SWIFT TO ANY AGENCYS VIEW OF A
STATUTES PREEMPTIVE SCOPE.)

SMILEY V. CITIBANK (SOUTH DAKOTA), N.A.

CASE WHERE BANK WAS ALLOWED TO CHARGE THE INTEREST RATE OF THE STATE THAT THE
BANK WAS LOCATED IN UNDER THE NBA ACT BUT WHETHER IT COULD CHARGE LATE FEES
WHICH WAS ALLOWED BY THE STATE THE BANK WAS LOCATED IN BUT NOT ALLOWED IN THE
CUSTOMERS HOME STATE.

COURT LOOKS TO THE AGENCYS INTERPRETATION ONCE THEY DECIDE THAT THE
TERM IS AMBIGUOUS AND DECIDE THAT LATE FEES ARE INCLUDED IN THE STATUTORY
TERM. SAYS THAT THE COMPTROLLERS REGULATION IS REASONABLE AND THUS IS NOT
ARBITRARY AND CAPRICIOUS TO IGNORE THE CHEVRON DEFERENCE.
SAYS THAT PREEMPTION DOES NOT APPLY BECAUSE THE ISSUE AT HAND DID NOT
DEAL WITH IT (OVERALL ACT DOES PREEMPT STATE LAW THOUGH BUT THAT WAS NOT THE
ISSUE AND THE REVIEW WAS NOT DE NOVO)
-

NOTES FROM TEXT:

1.
THE DECISION TO PREEMPT VERSUS THE SCOPE OF PREEMPTION:
-MOST IMPORTANT PART OF SMILEY IS JUSTICE SCALIAS DISTINCTION BETWEEN 1. CASES
INVOLVING AN AGENCYS VIEW ON THE MEANING OF A STATUTORY PROVISION (WHICH MAY
HAVE PREEMPTIVE CONSEQUENCES) AND 2. CASES INVOLVING AN AGENCYS VIEW ON
WHETHER A PROVISION OF A FEDERAL STATUTE PREEMPTS STATE LAW (SMILEY FALLS IN
CATEGORY 1)
2.
THE UNSETTLED STATE OF THE DOCTRINE
-

V.

Oversight of Administrative Regulation GET NOTES FROM TEXT!!!

A.
Political Oversight
24.
Congress and Presidential Influence over Agency Policy: Casebook at
473-76, 551-66, 572-78, Constitution Art I, 8, clauses [1] & [18], Art. II
25.
An Inside View of the Regulatory Process The Interaction of
Expertise and Politics: Materials at 92-99

Pgs- 756-75 follow- Review of agency policy decisions

ReadRead for
TuesChevron Review of Agency Statutory Interpretation: Casebook at 814-27
Read for TuesdayClarity of a Statute Under Step One of Chevron: Casebook at
835-53- Tuesday April 3rd discussion and notes from class based on this material
Canons, Terms of Art, and Legislative History at Step One of Chevron:
Casebook at 853-67, 885-88. (time permitting)

The Interplay of Chevron and Constitutional Avoidance: Casebook at 889-900

(time permitting)
Chevron and Federalism: Casebook at 900-16 (time permitting)
32.
Chevrons Domain: Casebook at 916-38 (time permitting)