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Legislation and Regulation - Coggle Diagram

- - - - Judges have no legislative authority
      - Judicial role strictly constrained by limiting inquiry to statutory text at time of enactment
      - Judges should not “save” the legislature from its own poor drafting
    - - Elegant
      - Uniformity / Certainty in the Law
      - Democratic Legitimacy: keeps legislative authority solely in hands of elected representatives
      - Dissuades Judicial Activism by unelected judges unresponsive to popular will
      - Makes legislature more honest regarding what they are really doing, so they can be held accountable by voters
    - - Strict constraints of Textualism are NOT necessary to promote Uniformity / Certainty in the Law
        
        Stare Decisis and similarity in training, appellate review, etc. can sufficently curtail judges that make aberrant rulings
      - Democratic Legitimacy: legislatures cannot be expected to think of EVERY contingency when drafting statutes, and expect courts (and the executive) to cover what was not thought of or was unstated.
        
        That is, Courts have been DELEGATED legislative power in these situations by the legislature, so actions are sanctioned
      - The burden Textualism places on Legislatures to correct “mistakes” is too great.
        
        Passage of corrective legislation is time consuming and wasteful
      - Often yields markedly unjust results in particular case and for citizens prior to enactment of corrective legislation
      - Textualist judges are as “activist” as other judges (deciding cases based in part on their own values), but they disguise their actions under a textualist cloak
      - The Rule of Law is more than just words. Statutes are the product of societal desires and laws not consonant with those values will ultimately be rejected by citizens. Thus, originalism improperly ignores the very function of statutes by focusing solely on the statute’s text as understood at a moment in time.
  - - - What did legislator at time of enactment intend statute to mean
    - - Judges act as the faithful agents of the legislature to ensure the legislative will is carried out
      - Judicial role limited to intent of legislature at time of enactment
      - Judges prohibited from questioning advisability of the legislature’s statutory decision
    - - Democratic Legitimacy: keeps legislative authority largely in hands of elected representatives
      - Judges constrained to act as faithful agents
      - Promotes legislative efficiency since Courts will fill in rule legislature would have adopted if it has thought of the situation
    - - Legislative history is not authoritative and can be used to highlight views of particular legislators
      - No such thing as “intent” of the legislature since it is composed of many members who all have their own view about the law and its meaning, many of which could be contradictory
      - Democratic Legitimacy: Legislative history typically does NOT reveal the answer to a specific question, so judges have room to insert their own values in finding the legislature’s “imagined” intent
      - Encourages legislatures to draft sloppily or intentionally make language vague to deceive voters (or other legislators) of their true actions.
  - - - Judges act to divine the fundamental purpose of the statute and then apply it in a manner that faithfully advances that purpose
      - Judges can look beyond legislative intent in determining purpose of statute (e.g., history regarding need for legislative action, etc.)
    - - Prevents unjust applications of the law to particular cases
      - Promotes legislative efficiency since Courts will fill in rule legislature would have adopted if it has thought of the situation
      - Acknowledges the role of the law as solving societal problems and that statutes emerge in a broader context than just the legislators involved
    - - Often reasonable minds can differ regarding a statute’s “purpose” and in any event there may be multiple (perhaps contradictory) purposes
      - Democratic Legitimacy: judges have wide latitude to insert their own values in finding the statute’s “purpose”
      - Encourages legislatures to draft sloppily or intentionally make language vague to deceive voters (or other legislators) of their true actions.
  - - - Judges acts to maintain the vitality of the law as an instrument of societal cohesion.
      - Judges can and should exercise legislative functions. The reality of lawmaking is such that for an efficient legislative function both the courts and the executive must be delegated some legislative authority.
      - Judges are constrained from inserting their own values by stare decisis, common legal training, professionalism, appellate review, institutional concerns, etc.
    - - Allows the law to be applied in a rational common sense manner, and to adjust to societal changes without the need for new legislation
      - Promotes legislative efficiency since Courts will fill in rule legislature would have adopted if it has thought of the situation
      - Acknowledges the role of the law as solving societal problems and that statutes emerge in a broader context than just the legislators involved
      - Allows judges (as persons knowledgeable in the breadth of the law) to adjust particular statutes to create a coherent legal framework
      - Interpretation left to judiciary, which represents a stable branch of government less vulnerable to rapid shifts in political alignment
      - More honest. All judges insert their values into their decisions to some extent and make legislative decisions. Pragmatic jurists acknowledge what they are doing, rather than try to hide it as just applying a “clear” statutory answer
    - - Allows Judges to usurp the role of the legislature
        
        Courts are ill-equipped to create legislative solutions since they must decide particular cases
      - Democratic Legitimacy: Gives unelected judges unfettered discretion to insert their own values in applying a statute
      - Creates uncertainty in the law, since meaning can change over time
      - Creates lack of uniformity in the law (unpredictible results) since each judge can develop his own meaning for statute based on his view of society’s interests.
- - - - Words
      - Context words appear in
      - Whole act
      - Context in broader legal/statutory framework
    - - Ordinary meaning
        
        Words understood based on everyday meaning
        
        But often ordinary usage varies between people or based on context
        
        Alternative support for an ordinary meaning approach is that ordinary citizens should be able understand statute
        
        The Golden Rule Exception
        
        If the plain meaning of a word would reach an absurd or ridiculous result, then the plain meaning should be ignored, and therefore other guidance must be sought . . .
      - Dictionary meaning
        
        Evidence of ordinary meaning
        
        BUT, which dictionary? which definition?
      - Legal meaning
        
        Generally an established legal meaning trumps ordinary meaning
    - - The meaning of words is strongly influenced by the context in which they appear
      - Hence, a number of specific linguistic canons address common contextual situations
    - - Every word must be given effect and interpreted as if it was not merely duplicative or redundant
      - In the real world we aren’t Earnest Hemingway
      - To the contrary, we typically repeat merely for emphasis, to fill silence, or so that the hearer is clear on meaning (e.g., the initial phrasing used an unfamiliar word)
    - - An ambiguous item in a list can be understood by reference to the other items in the list
      - Or a term should be interpreted by the context in which used
      - Tension with rule against surplusage (i.e., items in a list must be different enough not to be redundant, but similar enough to be able to inform each other’s meaning)
    - - When a list of terms occurs, a general catch-all phrase should be interpreted based off the characteristics of the other listed items
      - For example, if a law refers to automobiles, trucks, tractors, motorcycles, and other motor-powered vehicles, a court might use ejusdem generis to hold that such vehicles would not include airplanes, because the list included only land-based transportation.
      - Similar to Nocitur, but there inform meaning of a specific item by reference to others listed
    - - Reasoning by negative inference.
      - If legislature specifically INCLUDED one thing, then by implication it must have MEANT to EXCLUDE all others
      - Keep in mind that reasoning by negative inference is often a dangerous/untrustworthy way to reason since it assumes drafter intentionally considered all possible things which might be covered
      - “a corporation must make its by-laws available to shareholders” -- intent was to EXPAND documents available to shareholders, but the negative inference would be that now NO OTHER information needs to be provided
    - - “and” and “or” are different
      - “may” is permissive; “shall” is mandatory
      - “including” usually introduces a NON-EXCLUSIVE list
      - Last Antecedent Rule: Limiting or qualifying words only refer to the LAST antecedent in the sentence.
        
        “A commercial driver’s license shall not be required for the operation of boats, tractors, and trucks under three tons, " the qualifier "under three tons" applies only to trucks and not to boats or tractors.
    - - Courts should interpret a statutory provision in a manner that is consistent with the rest of the statute
      - Various corollary rules flow from this basic premise
    - - A word should take the same meaning everywhere it appears in a statute.
      - However, presumption can be rebutted based if the contextual usage so indicates.
      - Conversely, where a statute uses different words, it is presumed that they were meant to have different meanings
    - - In pari materia
        Part of the same material
        
        statutes should be interpreted to be consistent with other statutes concerning the same subject matter
        
        Typically used when statutes use identical term
        
        The more closely related the subject matter of the statutes, the more likely this rule is to apply
      - Modeled Statute Rule
        
        If legislation was based on an earlier statute on one from another jurisdiction, then the court can look to interpretations of such earlier or model statute in determining the meaning of the legislation
        
        Justification is that legislature was aware of the interpretation of earlier statute and therefore implicitly endorsed it
      - Statutory Conflicts
        
        Specific clauses/statutes trump general clauses/statutes
        
        More recent statutes trump earlier statutes
        
        “No” repeal of earlier statutes by implication. Legislature must specifically provide that earlier statute/provision is being repealed.
        
        However, if later statute is explicitly contradictory, then more recent controls and earlier is effectively repealed
  - - - Stated many different ways:
      - Always pick the constitutional reading over [any other, other equally plausible, fairly possible] readings
      - Decide case in a way that avoids raising a Constitutional issue if at all possible
    - - Ambiguous criminal statutes should be construed in favor of criminal defendant
      - Only for CRIMINAL statutes AND only if AMBIGUOUS
      - Only if cases where behavior not OBVIOUSLY wrong (i.e., only apply in malum prohibitum cases)
    - - Similar to no Repeal by Implication, but for common law
      - If Common law rule exists, legislature is presumed to know it and therefore must act explicitly to over rule it.
      - Promotes continuity in the law
      - Less relevant than in the past since statutory law is of paramount importance today
    - - In general, federal law controls when it conflicts with State law.
      - However, the abrogation of State law in favor of a Federal law should be made knowingly by the legislature. So, presume State law survives as long as Congress has not clearly indicated otherwise.
      - However, can be done generally, as where Congress intends its control of the subject area to “occupy the field” even if no specific contrary federal law exists
      - E.g., no state immigration laws
    - - Presumption of Indian tribal immunity
      - Presumption that law is consistent with treaties and international laws
      - Presumption against retroactive laws
      - Presumption against derogation of judicial powers
      - Presumption in favor of judicial review
  - - - Textualists willing to consider (public info and what everyone at time would know)
    - - Textualists reject considering legislative history
      - Textualist Critique
        
        Legislature has no “single” intent
        
        In any event, intent is irrelevant since only statutory words are actually enacted with force of law
        
        Different sources may have conflicting statements
        
        Allows activist judges to cherry pick legislative history to disguise their substitution of their own judgment
        
        Allows legislature to get lazy in drafting statutes, knowing courts will seize on legislative history to save law
        
        Legislators can use legislative history to enact a law without being forthright with their constituents about law’s meaning
        
        Law makers may unscrupulously insert language in history that does not reflect general understanding of the law
        
        Created uncertainty in the law since public can’t divine meaning by words of statute alone, need to wade thru legislative history
    - - Committee Reports (house, senate, conference)
      - Statements of Sponsors
      - Deliberations/debate in legislature
      - Hearings
      - Post-enactment Reports and statements
      - Legislative INACTION
- - - - All agencies have inherent authority to issue “interpretive” rules that explain what the agency believes a statute means.
      - However, these rules are not themselves “the LAW”
      - They merely “echo” what the statute already requires
    - - Legislative Rules themselves HAVE THE FORCE OF LAW
      - Represent areas where Congress has DELEGATED LEGISLATIVE POWER on the Agency
      - Legislative Regulations are functionally indistinguishable from a statute
  - - - Formal Rulemaking (for legislative rules)
        
        Requires oral evidentiary hearing in a trial like setting that can drag on for years
        
        Mechanism is so cumbersome it is almost never used in actual practice
        
        Applies only if statute requires “rules are required to be on the record after opportunity for a hearing”
        
        Congress only includes such language when they intentionally want to sabotage an agency
        
        Process effectively prevents agency from ever adopting formal rules
        
        Even if a formal rule IS adopted, very vulnerable to being overruled by Courts under Arbitrary and Capricious Standard (A&C)
        
        Rule is INVALID of Agency’s decision was A & C
        
        A&C if Agency relied on factors Congress did not intend; failed to consider an important aspect of problem; offered an explanation that runs counter to evidence before agency; so implausible that it does not represent merely a difference in view or expertise
        
        Courts have easy time striking down formal rulemaking under this standard
      - Informal Rulemaking (for legislative rules)
        
        Three step process for Legislative rulemaking
        
        Notice of Proposed Rulemaking
        
        Receipt and consideration of comments (typically including a public hearing)
        
        Issuance of Final Rule, with statement of basis and purpose
        
        Historically efficient, but much less so today due to Arbitrary and Capricious Standard (A&C) see above definintion of a and c
        
        That is, opponents load up process with piles of contrary arguments/evidences in their comments and agency then has to address these comments in its statement of basis
        
        Process today can still take YEARS to complete
        
        Typically survive A&C attack, but still 30% chance court remands back to agency for further action
        
        Advantages:
        
        Better quality rules since all views heard and considered as well as impact of alternative rules
        
        Fairer due to advance notice of rule and opportunity to give input prior to adoption
        
        Efficient manner to address recurring issues by agency expertized in area
        
        Increases political accountability since elected officials can play role in influencing (and be held accountable for) agency actions
      - Other Guidance (i.e., NOT legislative rules)
        
        Procedural Rules
        
        No APA requirements
        
        Deal with procedural matters: e.g., how to file submissions with the agency, etc.
        
        Question of Procedural v. Substantive sometimes analyzed by courts using analogy to Erie Railroad v. Tompkins (i.e., use Erie type approach to determine if rule is really procedural)
        
        Interpretive Rules
        
        Only interpret statute (or legislative rule)
        
        No requirements under APA
        
        Many more interpretive rules issued every year than legislative rules
        
        Policy Statements
        
        No APA requirements
        
        If not legally binding (i.e., just announcing manner in which agency generally intends to act), then it is a proper policy statement
  - - - Often hard task to decide if rule is interpretive or legislative. No settled approach
      - Leg rule creates, changes or eliminates rights and duties
      - Interpretive rule only clarifies or particularizes rights and duties created by statute (or by a legislative rule)
      - One test: Rule is legislative IF:
        
        Agency says so
        
        Rule amends prior legislative rule, or
        
        Agency needs rule to justify initiating an enforcement action
    - - Conversely, if the rule is interpretive, then standard of judicial review of substance is much broader under Skidmore Approach
      - A legislative rule, as long as it has no procedural problems under APA (e.g., it is not A&C), is accorded significant judicial deference under the Chevron Approach
      - SKIDMORE
        
        “weight of [an agency statutory interpretation] will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control”
        
        Court not bound by agency interpretation, but it may, especially if longstanding, influence the court’s determination of meaning
      - CHEVRON
        
        Step 1: is there ambiguity? If not, then agency rule irrelevant, unambiguous intent of Congress controls
        
        But, if YES, then:
        
        Step 2: is agency rule based on a permissible / reasonable construction of statute?
        
        If YES, Court defers to agency interpretation
        
        If not, then agency rule irrelevant, meaning as determined by court controls
        
        2 step
      - Mead
        
        grant of legislative authority can be implied and need not be explicit.