Chapter 1. Sources and Hierarchy of Lawmaking Authority 9 19 results (showing 5 best matches)
- Today, a thorough grounding in legislative and regulatory processes is an essential component of an understanding of the sources and authority of American law. While the court-centric common-law tradition to which American law traces its roots continues to profoundly shape the U.S. legal system, state and federal legislatures have long displaced courts as the primary creators of law. In turn, as American society and government have grown more complex, legislatures have increasingly shared their lawmaking authority with administrative agencies, whose regulations now comprise another substantial layer of American law. Accordingly, this chapter briefly identifies the sources and hierarchy of legislative and regulatory lawmaking authority. The remaining chapters of Part I then provide more detail concerning the function and operation of contemporary legislatures and administrative agencies.
- , that “the power to declare whether or not there shall be a law, to determine the general policy to be achieved by the law, and to fix the limits within which the law shall operate is vested by our constitution in the legislature ,” the court also explained that nonetheless “when the legislature has laid down the fundamentals of the law, it may delegate to administrative agencies such legislative powers as may be necessary to carry into effect the general legislative purpose.” All states permit their state legislature to give agencies the authority to promulgate rules provided they are doing so in furtherance of a specific purpose or policy that the legislature has established.
- As described in section A above, the state and federal constitutions are the supreme law within their respective spheres at the state or federal level. Other sources of law—statutes, regulations, judicial orders, executive orders, local ordinances—all derive their authority from these constitutions. These constitutions, in turn, impose important structural features and substantive limits upon the subordinate powers of federal and state lawmaking.
- To better facilitate the implementation and execution of law, it has long been an accepted feature of American government for legislatures to create departments within the executive branch to administer government policies over specified subject matters. Indeed, in 1789, several of the First Congress’s earliest and most important actions were to establish the Departments of State, War, and Treasury. But today, the duties given to government departments and agencies routinely include more than the mere execution of law, and also comprehend the development of substantive regulations and the adjudication of disputes. Indeed, although appears to grant Congress exclusive federal legislative authority, Congress routinely delegates to federal departments and agencies the authority to promulgate regulations that clarify, extend, or otherwise fine-tune statutory law in areas overseen by the relevant department or agency.
- Nevertheless, the U.S. Constitution gives Congress broad authority to legislate in many areas. For instance, among other powers, the Constitution permits Congress to: impose taxes and spend the proceeds thereof; establish a national military; develop a body of law to protect copyrights and other intellectual property; regulate commerce among the states; admit additional states into the Union; and enforce the Fourteenth Amendment’s guarantees of due process and equal protection of law for all citizens. Whenever Congress legislates, it must rely, at least implicitly, on some particular grant of authority in the Constitution.
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Chapter 12. Judicial Review of Agency Interpretations 481 37 results (showing 5 best matches)
- This Nutshell concludes with a chapter dedicated to one of the most important and difficult questions in the field of statutory interpretation: How should courts oversee or review the way in which administrative agencies interpret statutory text? In part, the question of the scope and relevant standards of judicial review of agency interpretation is important because of just how many laws today are interpreted and applied by the administrative state. But in addition to the widespread impact that the answer to this question will have, it is particularly important because it concerns the relationship among all three of the coordinate branches of American representative democracy. The legislative branch passes a law, but leaves to executive branch departments and agencies (whether deliberately or inadvertently) many elements of the statute’s administration and enforcement, including ascertaining the statute’s meaning in particular cases. Some of those administrative interpretations...
- opinion has become the most cited Supreme Court administrative law decision. Although in part this reflects the vast number of administrative interpretations that are the subjects of judicial review, at least two other factors help explain the
- Still, questions linger within the academy and the judiciary about whether Step Two deference to agency interpretation of statutes either allows the legislative branch to shirk its institutional role of passing clear laws or usurps the judicial branch’s role to declare what the law is, on the one hand; or instead appropriately involves the executive branch in declaring what the law is, as a “counter- for the administrative state.”
- , the Court’s basis for deferring to the agency depended heavily on the fact that Congress had “assigned” to the NLRB the responsibility, as part of its regular “administrative routine,” to determine to what employment relationships the NLRA applied. However, unlike , the Court articulated the key difference between these two questions not in terms of whether or not Congress had clearly spoken to the issue, but in terms of the difference between questions of pure law, appropriate for judicial resolution, and “mixed” questions of law and fact, more appropriate for agency resolution in light of the agency’s role and experience.
- deference was appropriate only when “Congress would expect the agency to be able to speak with the force of law.” Because the Court here could find “no indication that Congress intended such a ruling to carry the force of law,” the Court held that the type of tariff classification at issue “has no claim to judicial deference under deference even when no such administrative formality” is present. But
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Chapter 6. Inside the Administrative State: The Authority and Operation of Government Agencies 38 results (showing 5 best matches)
- At about the same time that Congress was developing the Administrative Procedure Act, the National Conference of Commissioners of Uniform State Laws (NCCUSL, also often called the Uniform Law Commission), with the encouragement of the American Bar Association, was developing its own Model State Administrative Procedure Act (MSAPA). Most state administrative procedure statutes trace their pedigrees to this 1946 model act, and its subsequent revisions, more than to the federal APA. However, the model state act was substantively quite like the federal APA, and indeed was developed almost in tandem with the APA. By 1981, when NCCUSL released a second revision of the MSAPA, more than half the states had adopted some version of either the original 1946 MSAPA or its 1961 revision. Other states that did not adopt some
- Judicial review of agency action raises difficult questions of when and to what degree courts should defer to agency expertise (which after all is a primary rationale for delegating substantial discretionary authority to agencies in the first place). Accordingly, over the years several distinct doctrines of judicial review have developed for a variety of agency rulemaking and adjudication contexts. The paragraphs below sketch the outlines of several of the most significant of these doctrines. Other topics beyond the scope of this Nutshell concerning judicial review of agency action include: the “exhaustion” requirement, which requires aggrieved parties to exhaust all avenues for relief within the administrative process before turning to courts for relief; related requirements that an agency action must be “final” before it is reviewable in court; the APA provision that judicial review is not available for agency actions “committed to agency discretion by law”; the presumption that...
- The Administrative Procedure Act (APA), et. seq., is often characterized as the “constitution” of federal administrative law because of the foundational way in which it defines the functioning and the limits of the authority of federal agencies. In the main, it specifies in significant detail certain processes (such as public comment opportunities and notification requirements) that all federal agencies must follow when promulgating various types of rules or adjudicating certain kinds of disputes. It also requires that federal agencies take a number of affirmative steps to keep the public informed of their work and it establishes processes for judicial review of agency action.
- be represented by counsel, as well as rights to subpoena relevant witnesses, to obtain copies of records, and to receive notice and an explanation of resulting agency action. Formal adjudications are usually conducted by Administrative Law Judges, who function like hearing officers, assisting the agency in developing a factual record and making an initial or recommended decision. But the agency itself, which has final responsibility for the matter, is not required to follow or adopt the ALJ’s decision.
- Delegation of Authority to Administrative Agencies
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Introduction Why Study Legislation and Regulation? 7 results (showing 5 best matches)
- Traditionally, American legal education has focused primarily on the role, function, and doctrinal pronouncements of the judicial branch of government. Since the adoption of the case method almost a century and a half ago, lawyers have learned the law primarily through the close reading and analysis of hundreds of representative appellate court decisions, a pedagogy familiar to all first-year law students. Yet for most of the past hundred years, legislatures and administrative agencies have created and implemented every bit as much law in the United States as have state and federal courts.
- Furthermore, the contemporary practice of American law now takes place against a backdrop of increasingly complex interactions between the institutions of all three branches of government, namely, legislatures, executive and administrative agencies, and courts. At both the state and federal levels, legislatures enact sweeping measures that touch almost every aspect of citizens’ lives in myriad ways, from health insurance, to motor vehicle operation, to the mechanics of voting, to stimulating the economy, to the criminalization of internet piracy, to the distribution of tax burdens, to name only a few specific areas of government regulation. Administrative agencies and executive branch officials in turn must enforce many of these legislative measures through the creation of their own subsidiary regulations, as well as through their own adjudication of particular controversies. Meanwhile, citizens often turn to courts for clarification of the scope and meaning of complicated statutes...
- This Nutshell is designed to accompany this trove of new learning, serving as an aid to law students and practicing lawyers who are seeking to refine and deepen their basic mastery of the functioning of the legislative bodies and regulatory institutions in which the vast majority of American law today is made, updated, and applied. The Nutshell discusses state as well as federal institutions and processes, addressing not only the U.S. Congress and today’s vast federal regulatory bureaucracy, but also state legislatures and administrative agencies. As part of its treatment of this subject, it considers the settled practice of delegating lawmaking authority from the legislative branch to the executive branch, and it explores the complicated relationship between these two branches. It also examines the interplay between the legislative and executive institutions that draft the text of the law, on the one hand, and the state and federal courts that frequently must serve as the...
- Accordingly, twenty-first century attorneys need to possess not only a thorough understanding of the judicial branch, its operation, and doctrinal output, but also a comprehensive grounding in the lawmaking activities of each of the three branches of government, including the interactions among these branches. These interbranch relationships sometimes may be truly collaborative; at other times they may be merely cooperative; and on yet other occasions they may even be genuinely conflicting or competitive. In this context, as a matter of both law creation and law implementation, opportunities for thoughtful, creative lawyering abound. Clients today may seek legal assistance in advancing a legislative agenda, appearing before an administrative agency, or persuading a court to adopt a favorable construction of a statutory or regulatory provision—all legal tasks that require in-depth knowledge of the legislative and regulatory processes and of the various theories about their proper...
- The Nutshell is divided into two principal but closely related parts. Part I describes the functioning of modern-day legislatures and administrative agencies. In addition to analyzing the various stages and inputs in the processes of law creation and implementation, it identifies the primary participants in these processes and discusses their motives and influences. The topics of this first part include: the sources and hierarchy of lawmaking authority (Chapter 1); theories of democratic representation (Chapter 2); rules governing the election processes that shape and populate the legislative institutions of representative democracy (Chapter 3); anti-corruption measures, including campaign financing and lobbying regulations, which further shape and influence our representative institutions (Chapter 4); the essential mechanics of how legislatures craft laws (Chapter 5); and the basic structure and function of governmental agencies, including the tools of legislative and judicial...
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Index 30 results (showing 5 best matches)
Chapter 11. Agency Interpretation of Legal Text 461 18 results (showing 5 best matches)
- All lobbyists worth their salt know that even after a bill becomes a law, many opportunities remain to influence its implementation. This is primarily because the complexity of American law today regularly requires the promulgation of additional regulations to clarify and enforce the statute, and also relies on the administrative adjudication of a range of associated issues. Responsibility for promulgating these regulations and conducting these adjudications generally rests with the executive branch departments and independent agencies whose existence, organization, and function were described in Chapter 6.
- Congress is free to specify whether or not the agency’s use of that authority is subject to judicial review. Congress occasionally does so by including in a statute a preclusion of judicial review of specified agency actions, as for instance in a Department of Veterans’ Affairs statute which provides that “the decisions of [the agency] on any question of law or fact under any law administered by the Veterans Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.” . Additionally, under the Administrative Procedure Act, certain agency actions may be unreviewable if they are “committed to agency discretion by law.”
- Congress and state legislatures now routinely delegate to these organs of the administrative state the explicit authority to make rules and adjudicate controversies. In turn, these agencies, by law, conduct many of their most important proceedings in public meetings, formal on-the-record hearings, or notice-and-comment rulemaking procedures. The primary point of these processes is to help the agency collect additional information relevant to its execution of its responsibilities. Meanwhile, the public nature of these processes makes it easy for citizens and other interested parties to renew their
- As Chapter 6 explains, the nondelegation doctrine imposes some limits on a legislature’s ability to give agencies unbridled discretion to make law. Nevertheless, agencies regularly construe and refine the statutes they are implementing in ways that create new legal rights and duties. Indeed, in the typical case of a delegation of authority, this is exactly what an agency is expected to do, as long as the agency’s resulting rules and orders are consistent with its delegated powers. Congress and state legislatures often will enact measures that they know are ambiguous or insufficiently specified, with the expectation that the administrative agency will supply the clarifying interpretations when it promulgates regulations or adjudicates controversies.
- As part of the rulemaking process, agencies not only determine how to operationalize a legislative directive, but also fill in gaps and interpret ambiguities in legislative enactments. However, in doing so they must function within many more constraints than the legislature. These constraints encompass not only constitutional limits on government activities, including Due Process requirements, but also whatever limits the legislature has imposed through the agency’s enabling statutes or other measures (often including requirements of conducting cost-benefit analysis), the limits of any applicable executive branch orders and directives, and the procedural requirements of the Administrative Procedure Act (or state law analogs).
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Chapter 2. The Nature of Democratic Representation 35 18 results (showing 5 best matches)
- At the administrative agency level, hurdles in the processes of creating regulations (as will be discussed in Chapter 6) are also important. They not only may serve the same deliberation-enhancing purposes noted above, but also may provide safeguards against the misuse of delegated lawmaking authority. Thus, procedural constraints on administrative action in part respond to the fact that administrative officials,
- In part, the continuing strength of the republican conception of legislatures reflects the influence of the “Legal Process” school of thought, developed in the mid-twentieth century largely by Harvard Law Professors Henry Hart & Albert Sacks.
- First, this chapter will describe several different ways of viewing the roles of our elected representatives, as well as of how we expect our representative institutions to function. Chapters 3 and 4 will then explore features of the electoral processes, campaign finance practices, lobbying mechanisms, and bribery prohibitions through which we select and influence the representatives who populate our legislative institutions. Chapter 5 then will review the formal processes of creating statutes, while Chapter 6 will discuss the administrative entities and regulatory processes that these legislative bodies have created to assist in lawmaking and law implementation.
- Perspectives on the Operation of the Administrative State
- OF THE ADMINISTRATIVE STATE
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Chapter 7. The Challenge of Textual Interpretation 265 42 results (showing 5 best matches)
- By the mid-twentieth century, a number of other legal thinkers were pushing back against Holmes’ and the Legal Realists’ more skeptical views of law. So too was the rapid expansion of the administrative state, with its reliance on bureaucratic expertise. As part of what would become known as the school, these thinkers argued that rather than being primarily a prediction of how courts will use their authority, law was a complex arrangement of obligations that depended, for their acceptance and validity, on being the output of legal institutions (courts, legislatures, and agencies) governed by a set of rational processes. These processes were public, accessible, deliberative, reasonable, and stable. They brought a form of coherence to the legal system, a system that depended on the institutional competence of distinctive bodies such as courts,
- Though historically the law has not always been written, all modern legal systems depend on written, accessible statements of the law. In the common law tradition, that is why for centuries judicial decisions have been “reported” in published volumes, to which lawyers and citizens generally can refer for guidance and advice. In turn, part of being a lawyer then involves recognizing when the implications of the reported or recorded law are not clear, in which case the lawyer’s role includes marshaling arguments for how to understand, construe, extend, and refine the law when it is applied to a new or unaddressed circumstance.
- As the preceding examples begin to demonstrate, legal text can be rife with interpretative problems similar to those that affect other forms of communication. But problems of legal interpretation also present a special case. In a fundamental sense, the words of the law are themselves
- Many of these and other aspects of interpretive methodology are the subject of the next chapter. As additional foundation for that discussion, this section will reflect briefly on what the “law” itself is and where it comes from, including both the role of courts as well as the place of statutes and regulations in American law. Although the general question “what is law?” is far too broad for this chapter to even begin to address well, a few thoughts will provide some relevant background. Some theory of “the law” and how it is created, even if it is entirely implicit, inevitably undergirds one’s theory of textual interpretation (as does some theory of language, even if also implicit). For a full Nutshell treatment of what “law” is, see
- account of law that dominated American jurisprudence at the beginning of the twentieth century, the role of courts was to “find” the law through the application of neutral principles. On this conception, the common law already existed, waiting to be discovered. In contrast, legislatures were viewed as institutions that could “make” law as a matter of pure political will (with state legislatures in particular even sometimes viewed as examples of “mob rule”). Typically, this account exalted courts as normatively superior because in their hands law was a deductive science involving the logical application of accepted rules and doctrines to the problems of social living and circumstance, while statutory lawmaking in the hands of a legislature was simply crass power politics. Statutes might be formally and hierarchically superior to common law, but in practice they might often be functionally inferior, diminished by social attitudes and a pejorative perception that legislative outputs...
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Chapter 3. Electoral Structures, or How American Legislatures Are Populated 15 results (showing 5 best matches)
- Administrative recount and judicial contest processes then provide opportunities for candidates to challenge election results. Each state has its own established recount procedures, typically providing for an automatic recount in a race within a specified narrow margin of victory, or allowing a candidate to request a recount if the candidate pays an administrative fee. However, the extent of automatic vote tabulation in today’s election systems means that recount results rarely deviate much from canvass results.
- Although federal law provides relatively few constraints on the ability of states to gerrymander their congressional and state legislative districts, in many instances state law does impose some limits on how districts can be drawn, whether as a matter of state constitutional law or state statutory requirement. Additionally, in response to increasing public concern about the partisan manipulation of legislative districts, several states have taken the redistricting process entirely out of the hands of elected politicians or their appointees and developed alternative processes intended to reduce or eliminate partisanship; many other states continue to consider doing so.
- , the U.S. Supreme Court held that a one-year state residency requirement and a three-month county residency requirement were too long. Without specifying exactly how long is too long, the Court has looked favorably on a thirty-day residency requirement as a reasonable period, allowing time for states to handle administrative tasks associated with processing voter registration applications and preparing voter rolls.
- Nevertheless, many details concerning how to structure legislative elections remain open for debate, depending in part on the underlying representational goals. This chapter considers a number of the essential legal rules and principles that determine who serves in the legislatures. These include some relatively fixed requirements, such as the eligibility criteria specified in the U.S. Constitution and state constitutions; evolving legal principles and political practices that determine how legislative district boundaries are drawn; and the frequently changing rules and principles of state law (as affected by an overlay of federal constitutional and statutory law) that determine how elections are conducted. The chapter concludes with a consideration of legislative term limits. Many of these topics also are discussed in much greater detail
- However, it is something of a misnomer today to speak of a political party as though it is the entity “holding” the primary election. Rather, the same public officials who conduct the general elections also conduct the primary elections, and do so according to rules and procedures determined as a matter of public law. Thus, even in states with closed primaries
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Outline 16 results (showing 5 best matches)
Chapter 5. Inside the Legislature, or How a Bill Becomes a Law 181 26 results (showing 5 best matches)
- Without the organizational framework of a code, the legislature’s work product might amount to a vast sequence of acts or “slip laws” eventually bound in volumes in chronological order. This is precisely what “session laws” are, a designation that includes the volumes of federal law called Statutes at Large. A jurisdiction’s session law volumes contain the official text of the law. Session laws also can be interesting for historical purposes, but they can be unwieldy for finding the governing law concerning a particular topic. Nevertheless, a jurisdiction’s slip laws or session laws may be the only places to go to find uncodified law.
- In the federal system, once the President signs a measure, it is immediately effective, unless the measure by its own terms provides for a subsequent effective date. The Office of the Federal Register then publishes each new law as a “slip law,” which can also be accessed electronically through the website of the Government Printing Office. The new law also will eventually be included in the United States Statutes at Large, a volume of “session laws,” comprising all of the measures enacted into law during that same session of Congress.
- If the President instead disapproves (vetoes) a measure, the measure is returned, along with the President’s veto message, to the House of Congress that originated the measure. There Congress can begin considering whether to enact the measure into law notwithstanding the President’s veto. Both Houses must approve the measure by a two-thirds supermajority in order to enact the measure into law over the President’s objections. If both houses obtain the required supermajority, the Office of the Federal Register then publishes the “slip law” version of the new law.
- In about half the states, measures signed by the Governor ordinarily are not immediately effective. Instead, these measures must wait a specified period (usually ninety days) in order to provide the state’s voters their own opportunity to disapprove the measure using the popular referendum process (discussed further in section E below). In an emergency, the state legislature can avoid the referendum process and make a measure immediately effective upon the Governor’s approval by passing a measure by a specified supermajority. In state systems, official publication of measures enacted into law then is typically the responsibility of the Office of the Secretary of State, first as slip laws, then later as session laws.
- Familiarity with the structure of a typical statute can help in reading it. Across all states and Congress, there are some similar components to statutes. The most common elements of a basic statute are: its title (and often a separate short title as well); some combination of preamble, statement of purpose, or background legislative findings; a separate section of definitions pertinent to the substance of the act; the substantive body of the act (sometimes dividing those substantive law provisions that are of a permanent nature from those substantive law provisions that are temporary); a separate section, as appropriate, containing penalties and other enforcement mechanisms connected with violations of the act; and matters of housekeeping and of conforming the act to existing law.
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Chapter 10. Legislative History and Other Extrinsic Tools of Interpretation 405 37 results (showing 5 best matches)
- The common law contributes to the interpretive enterprise in at least three distinguishable ways. First, it will sometimes be helpful for the interpreter to understand the related common law in order to recognize the gap that the statutory or regulatory text is filling. Placing the enacted text in the context of its relationship to pre-existing law is akin to using the “mischief” rule identified in Chapter 8. Second, the common law may also be helpful when lawmakers have used words with established common law meanings, to the extent that understanding those common law meanings may aid in construing the statutory text. (Note, however, that this deployment of the common law may run counter to the preceding type, as sometimes reference to common law definitions may reinforce existing doctrine, rather than allowing statutory measures to fill in gaps in the common law.) Third, applying common law principles may itself provide an aid in construing an ambiguous provision.
- If the statutory text seeks to remedy a defect in the existing common law, then understanding the common law background can help in understanding the purpose behind the statute, which in turn can shape the interpretive task. As an example of referring to the common law to supply an understanding of the mischief to which a statute is directed, consider the admiralty case of . At common law, maritime employers liable to their employees for unpaid wages were entitled to deduct or set-off damages for the employees’ alleged derelictions of duty. But in , the Supreme Court concluded that because Congress had intended “to change the general maritime law so as to improve the lot of seamen,” federal statutory law now preempted what would have been the employer’s common-law deductions. The Court acknowledged the interpretive rule that “[s]tatutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles” (a version...
- Sometimes interpreters may look not to the common law in existence at the time of a measure’s enactment, but to the law at the time of the interpretation. For instance, in another case, the Supreme Court decided that common-law liability immunity for prosecutors that was not even recognized until a quarter century after 1871 nevertheless was available in actions brought under section 1983 in the later twentieth century. . Likewise, in an important state law example, the California Supreme Court updated a statutory provision of its tort law so that it embraced the common law doctrine of comparative negligence, even though the same provision had long earlier been construed instead to codify the quite different common law tort rule of contributory negligence.
- William H. Manz, Guide to State Legislation, Legislative History, and Administrative Materials
- On occasion, an interpreter may apply common law doctrine to resolve textual ambiguity. For instance, consider , it often recurred to principles of common law tort liability, particularly those in place in 1871 when was enacted. In this case, the question was whether at common law punitive damages were available in tort only on a showing of actual malicious intent or could be imposed for reckless conduct alone. However, the majority opinion and one dissenting opinion reached opposite conclusions about what to make of the common law tort principles that existed in 1871.
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Chapter 8. Theories of Statutory Interpretation 303 37 results (showing 5 best matches)
- Yet by the time of the Founding, the supremacy of legislative enactments over the common law had already been clearly established, at least as a matter of theory. As a result, when these two sources of law have conflicting clear meanings, the statutory expression prevails. However, when the meaning of a statute is unclear, courts often have construed the statute in light of their reading of the surrounding law, to avoid or minimize any conflict. Thus, courts might refer to the common law in resolving a matter of statutory interpretation not only for its potential as a tool for understanding what defect the legislature was seeking to remedy, per , but also to further the ideal of making only the most incremental changes in the overall body of the law, except when the enacting legislature has clearly intended a more dramatic change. Put another way, the legislature is often presumed to understand the existing common law and to intend its continuation unless its legislative enactment...
- As summarized in Chapter 7, the Legal Process school responded to the Legal Realists of the early twentieth century, who had somewhat skeptically described the law as not the result of a process of logical reasoning from premises to conclusions, but as what judges willfully chose to do in furtherance of certain social, political, or economic ends. In contrast, Legal Process thinkers argued that in the American system of law, both courts and legislatures were involved in a process of “reasoned elaboration” of the law, a process that deserved respect as having a discernible coherence and rationality.
- suggests, the idea that the process of statutory interpretation could be a mechanism for updating a statute may strike many as counter to the idea of legislative supremacy at the foundation of both Textualism and Intentionalism. In particular, Textualists decry most forms of Pragmatic or Dynamic Interpretation as disrespectful of the legislature’s superior authority to make the law. The result could be a type of judicial lawmaking that circumvents the many procedural hurdles deliberately built into the legislative process as safeguards. Meanwhile, the prospect of judicial updating of statutes also may introduce some unpredictability in the law, as affected parties may be less sure precisely what a law means, even as defenders of Dynamic or Pragmatic Interpretation argue that it allows courts to enhance the overall coherence of the law.
- N.Y. Stat. Law
- Issues of statutory interpretation like those introduced in Chapter 7 have long abounded in the law. Over the years, courts, practitioners, and scholars have employed a variety of techniques and approaches to resolve these interpretive problems. These approaches have ebbed and flowed across a landscape marked with changing views about the respective roles of the courts and the legislatures in articulating what law is, as also described in Chapter 7. But especially during the twentieth century, as statutes grew in importance at both federal and state levels, several distinct interpretive theories flourished, generating increasingly widespread attention and commentary in the past several decades.
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Appendix: Representative Canons of Statutory Interpretation 8 results (showing 5 best matches)
Chapter 4. Campaign Financing, Lobbying, and Bribery: The Impact of Money in Politics 17 results (showing 5 best matches)
- But perhaps as important as any of these factors is that corporate America has simply become increasingly convinced of, and eager to capitalize on, the potential value of a large and well-managed lobbying operation. For many large corporations, this involves a team of both in-house lobbyists and hired government relations firms, whose activities often involve collectively monitoring hundreds of different proposed legislative and administrative actions, first identifying and then working to control the most important opportunities and risks. For many corporate clients, lobbyists’ most valuable contributions can be defensive efforts to prevent the
- State Laws Regulating Campaign Financing
- Federal Campaign Finance Law
- State Campaign Finance Laws: An Overview
- American Bar Association Task Force on Federal Lobbying Laws, Lobbying Law in the Spotlight: Challenges and Proposed Improvements, 63 Admin. L. Rev. 419 (2011)
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WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Chapter 9. Canons of Construction and Other Intrinsic Tools of Interpretation 363 21 results (showing 5 best matches)
- any other person charged with the duty of enforcement of the criminal laws
- For generations, the rule in English law was that the punctuation of a statute could not be used to resolve (or create!) ambiguity. This was because in an earlier era, marks of punctuation typically were added to the written law after the fact by clerks or recorders, rather than being added by Parliament itself during the process of enactment.
- An even more long-standing canon, reflecting the functional supremacy of the common law in an earlier era, as discussed in Chapter 8, is the Derogation Canon: Statutes in derogation of the common law are to be narrowly construed. In other words, the legislature’s output should be interpreted so as to change the underlying common law as little as possible. For instance, in , a negligence action brought under the Federal Employers’ Liability Act (FELA), the Supreme Court held that common-law principles of causation survived FELA’s enactment because the text of the act did not expressly reject those common-law principles.
- prescribes a tougher criminal sentence for a defendant convicted on federal child pornography charges if the defendant already has a previous state law conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct ” (emphasis added). Should the qualifying language “involving a minor or ward” be understood to limit only the state law crime of abusive sexual conduct? Or should it apply to all three of the possible kinds of state law crimes listed? How would the interpretive dilemma have differed if a comma followed the phrase “abusive sexual conduct”? Without that comma, the rule of the last antecedent would support applying the limiting phrase to only the final category of state law crime. In a 6–2 opinion, the Supreme Court followed this
- Another federalism-based canon, but a more long-standing and less restrictive one, is the presumption that a federal statute does not preempt state law. As articulated in 1947 in , “the historic police powers of the States were not to be superseded by [a congressional statute in a field of law that the States have traditionally occupied] unless that was the clear and manifest purpose of Congress.” Unlike the New Federalism canons, which in their typical formulation can only be overcome by a clear statement in the text of the statute itself, the presumption against federal preemption can be overcome by evidence outside the statute of congressional purpose or intent to preempt state law, including evidence of an actual conflict between federal and state law,
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Acknowledgments 3 results
- Election Law @ Moritz
- My parents, Bob and Dixie; my children, Diana, Emmy, and Kate; and my partner, Julianne, have also been immensely supportive, each in distinctive ways, of all my efforts to study, improve, and teach about the institutions and processes of American law and government. I am deeply grateful not only for their love and encouragement, but also to be able to share our lives—and citizenship—together.
- Teaching Legislation & Regulation as a first-year course at the Ohio State University Moritz College of Law, as well as teaching our elective Legislation Clinic for second- and third-year students, have been immensely satisfying experiences. They form the backbone of this volume and I am grateful to my many wonderful colleagues who have collaborated or otherwise shared these teaching experiences with me over the past two decades: Doug Berman, Jim Brudney, Sandy Caust-Ellenbogen, Ruth Colker, Terri Enns, Dakota Rudesill, Peter Shane, Donald Tobin, Dan Tokaji, & Chris Walker.
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- Publication Date: April 5th, 2017
- ISBN: 9781628102109
- Subject: Legislation & Regulation
- Series: Nutshells
- Type: Overviews
While traditional American legal education has focused primarily on the judicial branch of government, legislatures and regulatory agencies are responsible for the vast majority of today's law creation and law implementation, in fields from health insurance regulation, to motor vehicle operation, to environmental protection, to the mechanics of voting, to stimulating the economy, to the criminalization of internet piracy, to the distribution of tax burdens, to name only some.
Because well-equipped attorneys need a comprehensive grounding in legislative and regulatory processes and the relationships among all three branches of government, many law schools now teach some version of a course in Legislation and Regulation in the first year. This Nutshell addresses all the major topics of these courses, including the central question of how courts and agencies should interpret ambiguous statutes.
Part I describes the functioning of modern-day legislatures and administrative agencies, including not only their essential mechanics but also theories of democratic representation. Part II then builds on this foundation to develop the principal theories and doctrines of statutory and regulatory interpretation. It includes detailed discussions of the various "intrinsic" and "extrinsic" interpretive tools, as well as the competing interpretive approaches of Textualism and Purposivism. It also includes a chapter devoted to the Chevron doctrine and the question of how courts should review agency interpretations of statutes.