Law School for Everyone: Legislation and Regulation [2016]

Table of contents :
Professor Biography......Page 3
Table of Contents......Page 5
Course Scope......Page 7
Setting the Stage......Page 9
Is It a Vehicle?......Page 11
The Ambiguity of Language......Page 12
Letter and Spirit......Page 13
Other Interpretative Questions......Page 14
Lecture 2–  Regulation by Statute and by Common Law......Page 16
Contracts and Tort Law......Page 17
Common-Law Regulation......Page 18
Asbestos......Page 20
The Courts’ Response......Page 22
Legislation......Page 23
Lecture 3–  Legislation and the Administrative State......Page 25
The Civil Rights Act......Page 26
The Workplace Protections......Page 28
Affirmative Action......Page 29
Administrative Agencies......Page 32
The EEOC and the Workplace......Page 33
Lecture 4–  Touchstones of Statutory Interpretation......Page 35
Church of the Holy Trinity v. United States......Page 36
The Court’s Reasoning, Part 1......Page 37
The Court’s Reasoning, Part 2......Page 39
Riggs v. Palmer......Page 41
Riggs v. Palmer in the New York Court of Appeals......Page 43
Other Opinions......Page 44
Conclusion......Page 45
Background on Tennessee Valley Authority v. Hill......Page 48
The Court’s Conclusion......Page 50
West Virginia University Hospitals, Inc. v. Casey......Page 52
Arguments on the Case......Page 53
Background on Canons......Page 56
Justice Holmes’s Conclusion......Page 57
Semantic Canons......Page 58
Noscitur a sociis......Page 60
Substantive Canons......Page 61
Background on United States v. Marshall......Page 64
Marshall’s Challenge......Page 65
Marshall’s Case in Court......Page 67
Other Drugs......Page 68
The Dissents......Page 69
Two Views......Page 70
Conclusion......Page 71
Enforcing Rules......Page 74
Whitman v. American Trucking Associations......Page 76
Power Issues......Page 78
Whitman v. American Trucking Associations, Continued......Page 79
The Nondelegation Doctrine......Page 80
Costs and Benefits......Page 81
INS v. Chadha......Page 83
Agency Independence......Page 85
The President’s Ability to Fire Officials......Page 87
Humphrey’s Executor v. United States......Page 88
Independent Prosecutors......Page 89
Lecture 11–  Judicial Review of Agency Rulings......Page 92
Judicial Review of Agency Procedures......Page 93
Specialty Foods......Page 94
Judicial Review of Agency Reasoning......Page 96
Airbags at Issue......Page 97
The Court’s Reasoning......Page 98
After the Case......Page 99
Background on Chevron v. NRDC......Page 101
The NRDC Challenge......Page 103
MCI Telecommunications Corp. v. AT&T Co.......Page 104
FDA v. Brown & Williamson Tobacco Corp.......Page 106
Bibliography......Page 109
Image Credits......Page 114

Citation preview

Topic Professional

Law School for Everyone

Subtopic Law

Legislation and Regulation Course Guidebook Professor Peter J. Smith The George Washington University Law School

PUBLISHED BY:

THE GREAT COURSES Corporate Headquarters 4840 Westfields Boulevard Suite 500 Chantilly, Virginia 20151‑2299 Phone 1.800.832.2412 | Fax 703.378.3819 www.thegreatcourses.com

Copyright © The Teaching Company, 2019

Printed in the United States of America This book is in copyright. All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording, or otherwise), without the prior written permission of The Teaching Company.

Peter J. Smith, JD Arthur Selwyn Miller Research Professor of Law The George Washington University Law School

P

eter J. Smith is the Arthur Selwyn Miller Research Professor of Law at The George Washington University Law School in Washington DC. He received his BA from Yale University, where he graduated magna cum laude, and his JD from Harvard Law School, where he graduated magna cum laude and received the Sears Prize for highest academic performance. Before joining the faculty at GW Law, Professor Smith was an attorney at the US Department of Justice, where he represented the government in the US Courts of Appeals. At the Department of Justice, he defended the constitutionality of a number of federal statutes, including the Family and Medical Leave Act and the Food and Drug Administration Modernization Act, in cases that ultimately were resolved by the Supreme Court. Before he worked at the Department of Justice, Professor Smith clerked for Judge Phyllis A. Kravitch of the US Court of Appeals for the Eleventh Circuit.​

Professor Biography

I

Professor Smith has twice received the Distinguished Faculty Service Award for outstanding teaching at GW Law. He has published dozens of scholarly articles and is the coauthor of a popular casebook on constitutional law titled Constitutional Law: A Contemporary Approach. His research focuses on constitutional law, constitutional interpretation, and civil procedure.  Professor Smith also teaches the civil procedure section of the Great Course Law School for Everyone. ■

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Law School for Everyone: Legislation and Regulation

TABLE OF CONTENTS Introduction Professor Biography . . . . . . . . . . . . . . . . . . . . . . . . . . . . I Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III Course Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Lecture Guides 1•

Making Sense of Legislation and Regulation . . . . . . . . . . . . . . . . 3

2• Regulation by Statute and by Common Law . . . . . . . . . . . . . . . 10 3• Legislation and the Administrative State . . . . . . . . . . . . . . . . . . 19 4• Touchstones of Statutory Interpretation . . . . . . . . . . . . . . . . . . 29 5• The Letter versus the Spirit of the Law . . . . . . . . . . . . . . . . . . . . 35 6• When Is Statutory Meaning Plain? . . . . . . . . . . . . . . . . . . . . . . . . 42 7• Semantic and Substantive Interpretive Rules . . . . . . . . . . . . . . 50 8• How Do Courts Really Interpret Statutes? . . . . . . . . . . . . . . . . . 58 9• Federal Agencies as Regulatory Bodies . . . . . . . . . . . . . . . . . . . 68 10• Political Control of Agency Decision Making . . . . . . . . . . . . . . . 77 11• Judicial Review of Agency Rulings . . . . . . . . . . . . . . . . . . . . . . . 86 12• Weighing Agency Interpretations of Statutes . . . . . . . . . . . . . . 95

Supplementary Material Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Image Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Contents

103 108 III

DISCLAIMER The legal information provided in these lectures is for informational purposes only and not for the purpose of providing legal advice. These lectures may not reflect the most current legal developments in any particular applicable jurisdictions and cannot substitute for the advice of a licensed professional with specialized knowledge who can apply it to the particular circumstances of your situation. Use of and access to these lectures do not create an attorneyclient relationship with The Teaching Company or its lecturers, and neither The Teaching Company nor the lecturer is responsible for your use of this educational material or its consequences. You should contact an attorney to obtain advice with respect to any particular legal issue or problem. The opinions and positions provided in these lectures reflect the opinions and positions of the relevant lecturer and do not necessarily reflect the opinions or positions of The Teaching Company or its affiliates. Pursuant to IRS Circular 230, any tax advice provided in these lectures may not be used to avoid tax penalties or to promote, market, or recommend any matter therein. The Teaching Company expressly DISCLAIMS LIABILITY for any DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS that result directly or indirectly from the use of these lectures. In states that do not allow some or all of the above limitations of liability, liability shall be limited to the greatest extent allowed by law. IV

Law School for Everyone: Legislation and Regulation

LAW SCHOOL FOR EVERYONE

LEGISLATION AND REGULATION

I

n law school, a course on legislation and regulation is about the rules that govern the enactment, interpretation, and implementation of statutes. Such a course is different from other first-year courses in law school. Most of the other courses taught in the first year of law school—on torts, property, and contracts, for example—are common-law subjects. Under the common law, courts devise rules to resolve the cases presented to them, and they write careful opinions to explain the rules and justify the conclusions that they reach. However, the main texts in a course on legislation and regulation are statutes enacted by legislatures and regulations issued by agencies. Whereas judicial opinions announce rules and reasons, statutes and regulations tend to announce just rules. If judicial opinions are novels, then statutes are poems: They are brief, yet packed with meaning. A course on legislation and regulation is in large part about how to discern that meaning. This course begins by considering a deceptively simple statute banning vehicles in the park. It turns out that statutory interpretation is much more complicated than it might initially seem. We will also consider the justifications for government regulation and the reasons why we might choose to regulate by statute rather than by the common-law system. Course Scope

1

After an overview of the legislative process, we will turn to the complex world of statutory interpretation. Important considerations arise: Should courts enforce the plain meaning of statutes, the legislature’s intent or purpose, or the judges’ sense of policy and fairness? We will address these questions by considering the various touchstones of interpretation, with lectures focused on the letter and spirit of the law, the canons of interpretation, and theories of the courts’ role in statutory interpretation. The course then turns to the administrative state. We will consider where federal agencies get their power to regulate and how exactly they use it. We will start by focusing on the nondelegation doctrine, which governs the limits on Congress’s power to give away its policy-making power. Then, we will consider political and judicial controls on agency power. The course ends with a lecture on the distinctive questions about statutory interpretation that arise in the administrative state. ■

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Law School for Everyone: Legislation and Regulation

Lecture 1

MAKING SENSE OF LEGISLATION AND REGULATION

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t is in areas of ambiguity that lawyers often make their greatest contributions. Persuading a court that one’s interpretation of a statute or a regulation is correct can have an enormous impact: It can heal a grave injustice, or significantly change a governmental policy, or open an entire new realm of opportunity for science or industry. And it all may turn on how lawyers and judges parse a few words on a page. This is the fascinating world of legislation and regulation. To introduce you to it, this lecture covers some background information and hypothetical stories.

SETTING THE STAGE Imagine that your 15-year-old son just got home. He is upset and angry because a police officer stopped him while he was riding his bicycle through the park. He was on the way home from school, and he kept to the paved paths in the park. But the police officer gave him a citation, saying that your son violated a town ordinance. The ordinance states, “No vehicles shall be permitted in the park.” Has your son actually broken the law? That depends on what the law means by the term vehicles. Is a bicycle a vehicle? If it is, then it seems like your son has unfortunately violated the ordinance. But is it obvious that a bicycle is a vehicle?

If you live in a dictatorship, where the government can punish you at its whim, then that is not the kind of question you are likely to ask. However, in countries like the United States, where the government is supposed to be subject to the rule of law, it matters what the law says. If the law does not ban bicycles from the park, then your son cannot be punished for riding one in the park. But how are we supposed to know what the law prohibits? Sometimes this is a challenge because we are simply unaware of the law. Even if ignorance was not at play in our example, imagine there was a big sign posted outside the park that clearly said, “No Vehicles Shall Be Permitted in the Park.” We still need to interpret the law to figure out whether it bans bicycles. Interpreting statutes and regulations, and understanding the rules by which the government adopts them and courts apply them, is the subject of a typical first-year law school course on legislation and regulation. This is a relatively recent addition to the first-year curriculum. Virtually all the other courses taught in the first year—torts, property, and contracts, for example—are primarily common-law subjects. Under the common-law system, which the United States inherited from England, courts devise rules to resolve the cases presented to them, and they look to the reasoning in opinions from previous cases for guidance on how to decide new controversies. It is these judicial opinions that students of torts, property, and contracts spend much of their time reading and discussing.

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Law School for Everyone: Legislation and Regulation

However, the common-law process is no longer the central feature of our legal system. Instead, law today is more likely to be enacted by a legislature or promulgated by an administrative agency than it is to be declared by a court. That does not mean it has any less authority, however. If you want to figure out how to comply with a statute or a regulation, or challenge one, or help a client do the same, you need to know how to make sense of them.

IS IT A VEHICLE? To return to your son’s predicament, it is pointless to fume about the citation that the police officer gave him. It is more productive to figure out whether a bicycle is vehicle. One option is to look in the dictionary, but in some cases this may not answer the question, especially when multiple definitions of vehicle or ones that do not seem to fit the term bicycle are in play. Perhaps it is more useful answer the question about the law’s meaning by referring to the word’s ordinary, commonsense meaning. For example, when you hear the term vehicle, do you think of bicycles? Most people do not. However, what if instead of your son, the citation was for an adult courier who knocked a pedestrian down? It would not be as obvious, in that case, that there had not been a violation of the ordinance. Because the rule in question is a town ordinance, another way to look at it is what the town council meant when it used the word vehicle in the ordinance. Perhaps their intent was to ban bicycles from the town’s parks. These approaches highlight an important difference between courses that cover common-law subjects and courses that focus on statutes and regulations. Students in subjects like torts, contracts, and property learn to read judicial decisions and then to make arguments about why the reasoning in a prior case mandates a particular result in a new case. However, statutes usually do not include reasoning—that is, they do not ordinarily explain why the legislature addressed a particular problem or what the justification for the regulation was. Whereas judicial opinions announce rules and reasons, statutes tend to just announce rules. Lecture 1–Making Sense of Legislation and Regulation

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THE AMBIGUITY OF LANGUAGE Another feature of interpreting legislation and regulation is that the ambiguity of language frequently comes into play. Indeed, the indeterminacy of language is endemic in the law. The Constitution, for example, protects the “freedom of speech.” Does this concept embrace the right to burn the American flag as a form of political protest? Does it protect the right of a corporation to spend money to promote the election of a candidate for office? The problem arises even with more mundane statutes that, at least at first blush, appear to speak with clarity. For example, suppose a state law requires drivers to turn on their headlights “after dark.” Does a driver violate the rule by failing to turn on his lights at dusk? At some indefinable point, it transitions from being light out to being dark out. How do we decide how the law applies in the face of this sort of ambiguity? A legislature could take care of this problem by creating a bright-line rule that is easy to administer. For example, the law could state that drivers must “use their headlights 30 minutes before sunset until 30 minutes after sunrise.”

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Law School for Everyone: Legislation and Regulation

Then, we would just have to check our weather app to know what time sunrise and sunset occurred, and that would answer whether headlights in fact were required. However, there would still be at least two problems with this law. First, most people don’t know exactly when sunrise and sunset are on a given day. Second, we would still want a provision that says that drivers also need to use their headlights at other times of day if it happens, because of weather conditions, to be unusually dark out. Then we would be right back to our interpretive problem.

LETTER AND SPIRIT Another complication arises when the plain terms of the law conflict with its ostensible spirit. Consider this example: Imagine that the town owns and operates the local train station. A town ordinance provides, “Sleeping in the train station is a misdemeanor punishable by a fine of not more than $500 or imprisonment of no more than two days.” A frequent business traveler arrives at the train station to learn that his train has been delayed an hour. He sits down in the waiting area and, after a few minutes, he dozes off. Has he violated the law? The ordinance clearly prohibits sleeping in the station, with no listed exceptions. And he was, in fact, sleeping in the station. Both the ordinance and the facts seem clear. But would it not be unjust to punish him? The law likely was designed to prevent vagrants from living in the station, and the facts of our case are sufficiently different from that targeted activity that it would seem inconsistent with the spirit of the law to punish him. Even with this reasoning, however, nailing down the spirit of a law can be difficult. This complication also raises questions about the role of judges. A simple way to describe their role is that judges interpret laws. Laws come from democratically elected representatives.

Lecture 1–Making Sense of Legislation and Regulation

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In one view, judges ought to exercise judgment in deciding when a particular application of a law would be unjust or even ridiculous. In another view, if judges can ignore the law and replace it with their personal views about fairness or wise policy, then are acting like legislators. But in most places, we do not get to vote for the judges. This raises questions: Is it the judge’s role to interpret a statute to avoid troubling, ridiculous, or unfair results? Or is it problematic for judges, many of whom are not elected, to substitute their views about what is appropriate for those of our elected representatives? This, of course, is a matter of intense political controversy in American law and government.

OTHER INTERPRETATIVE QUESTIONS Returning to the no-vehicles-in-the-park example, assume that its meaning is relatively clear with respect to most modes of transportation that you can use today. What would happen if, in 20 years, a teenager brought his brand-new hovercraft to the park? Imagine that the craft would permit him to travel through the park 15 feet off the ground, with its silent engine barely detectable to park goers. If the ordinance hasn’t changed—it still says, “No vehicles shall be permitted in the park”—then is the teenager in violation of the law? To answer this question, we would not only need to define the term vehicle; we would also need to decide at what level of generality to understand the term. After all, if the term applies only to vehicles that existed at the time the ordinance was enacted, then the legislature would have to update the law every time the world changed—which is constantly. But if the term can embrace unforeseen circumstances, then we are confronted with the additional challenge of deciding what types of new vehicles are sufficiently similar to older vehicles that they should count. The US Supreme Court often confronts these kinds of questions, and there are often lively debates among the justices about how to resolve them. 8

Law School for Everyone: Legislation and Regulation

Another complication is administrative agencies. Imagine that the town’s department of parks and recreation recently issued guidance to park officials and police, instructing them to apply the ban to bicycles and skateboards, but not to roller skates, tricycles, or baby carriages. Should the agency’s understanding of the park law influence the court’s view about what it means? To answer such questions, it is necessary to learn more about the role of administrative agencies in our system. It is difficult, if not impossible, to fully resolve a question of statutory interpretation without understanding the nature of regulation in our administrative state.

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