Administrative and Regulatory State (ars) Outline – Rascoff, Spring 2009 – Jason Hardy

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Administrative and Regulatory State (ARS) Outline – Rascoff, Spring 2009Jason Hardy


Administrative and Regulatory State (ARS) Outline – Rascoff, Spring 2009 – Jason Hardy
I. Overview of the Regulatory State and Statutory Implementation and Interpretation
Institutions and their Laws


  • Congress – Statutes (Note that we want legislative decisions to be political, unlike judicial decisions)

    • Art. I, §1: “All legislative Powers herein granted shall be vested in a Congress of the United States...”

  • Executive – President’s signing statements (indicating how a statute will be implemented) and executive orders

    • Art. II., §1: “The executive Power shall be vested in a President of the United States of America.”

    • Administrative Agencies – formal and informal rule-making and adjudication

  • Judiciary – Common Law

    • Art. III, §1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”


Implementation of Statutes

  • Legislative Choices for Implementation of a Statute:

    • 1. Public enforcement (criminal law)

    • 2. Private enforcement (tort and contract law)

    • 3. Agency enforcement/ bureaucratic model

    • 4. Combination of 1-3

  • Administrative Agencies

    • Methods of Legislative Power Over Delegated Authority

      • 1. Legislative oversight via

        • investigations of agency enforcement,

        • committee hearings,

        • funding decisions,
        • repealing or amending of statutes


      • 2. Legislative veto

      • 3. Control over agency personnel (less so for independent agencies)

      • 4. Judicial review

      • 5. Appropriations power

      • 6. Original structuring of the agency

      • * (1-3 have Constitutional limitations, 4-6 are indirect and less efficacious).

    • Historical Overview of Administrative Agencies

      • (Marver Bernstein’s characterization of the Agency “Lifecycle” (1955))

        • Youth - Agency’s crusading spirit engendered by statutory inception and efforts to deal with a better-organized industry.

        • Maturity – Agency better understands its industry and takes a less aggressive approach, while the political support and enthusiasm that spawned it has waned and the industry has come to control the agency (“capture”) to more of an extent.

        • Senescence – Agency has grown less vital and more inflexible.)

      • 1808 – Legislators felt that RRs were trampling upon small business interests and created the Interstate Commerce Commission (ICC).

      • 1906 – FDA forerunner was created following Upton Sinclair’s investigative journalism in The Jungle.

      • The New Deal spawned many new federal agencies to stabilize and stimulate the economy as well as regulate the financial market (e.g. SEC and FDIC) following the Great Depression. A majority on the Supreme Court initially opposed much of the new legislation, but later Justice Owen’s vote “switched” to favor FDR’s plans, allegedly in response to a court reform bill proposed by FDR that would “pack” the court with more justices (“a switch in time that saved nine”).
      • The Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706 et al.


        • Following the New Deal, the APA was enacted in 1946.

        • Purpose: to regulate agency lawmaking with procedural safeguards and judicial review designed to prevent arbitrary or unlawful actions.

        • Outlined two types of Administrative Decisions:

          • 1. Rules are “designed to implement, interpret, or prescribe law or policy.” Most are informal and generated through notice-and-comment rulemaking.

          • 2. Orders are like judicial decisions; they constitute the “final disposition” of a controversy involving the statutory or agency rules, and the process generally involves a trial-like procedure, including presentation of evidence.

      • The Great Society and Cold War era – Shift away from pure economic regulation

        • Civil Rights Act of 1964 (created EEOC) and Entitlement Programs sought to help people who were disadvantaged and/or discriminated against rather than to regulate markets.

        • 1970s –

          • Instigated by social “crisis” and heightened awareness of certain problems, regulation recognized previously-externalized social costs.

          • Regulation expanded to include consumer rights, public health and safety (OSHA), and environmental issues (EPA).

        • Characteristics of this era’s agencies:

          • The regulatory statutes had more specific mandates.

          • Authority became focused in single administrators rather than multi-member commissions.

          • Agencies became more open to public input. (The Freedom of Information Act was passed in 1966).
          • Agency action became more focused on the establishment of mandatory policy through general rules which left regulated institutions more choice over how to reach the outlined goals and limits.


      • 1980s

        • Political viewpoint shifted;

        • Reagan revolution favored de-regulation to free up the market. (e.g. Airline Agency deregulation, which involved Stephen Breyer). Regulation was seen by conservatives as stifling the market.

        • Focus on efficiency, using the tool of cost/benefit analysis – agencies had to demonstrate that the benefits of proposed regulation outweighed the costs.

      • Current Era?

        • May be similar to the New Deal era, in response to the financial crisis of our time.

  • Theories of Legisprudence (the study of how laws are made by legislative bodies)

    • Categories

      • Normative theories – describe how institutions should function.

      • Descriptive theories - describe how institutions actually function; e.g. public choice theory, which relies on economic theory and describes legislators as rational actors trying to maximize benefits to themselves (namely reelection). The theory posits that distinct interest groups (i.g.s) can affect policy – small and well-organized groups are more effective, while large groups lacking organization are less effective. For example, the nuclear power industry will tend to be better organized and more powerful, while the broad group of citizens concerned about nuclear power will be more poorly organized and less powerful. According to public choice theory, legislation will confer benefits on the powerful, concentrated special interests, while distributing harms across the rest of the population.

    • Proceduralist
      • Theory emphasizes the many obstacles (“veto gates”) a bill must pass through before it becomes a law. (Over 90% of bills introduced in Congress do not succeed.)


        • Art I §7 veto gates:

          • (1) bicameral (House and Senate) approval, (2) reconciliation, (3) presentment (approval by the President or 2/3 majority of Congress if vetoed by the Pres.)

        • Art I §5 veto gates:

          • (4) substantive House committee, (5) rules committee, (6) floor debate, (7) substantive Senate comm., (8) unanimous consent or (9) filibuster (only overcome by 60 votes - cloture)

        • As a result of the many stumbling blocks for legislation, a Congressional response to court decisions is practically very difficult to accomplish.

      • All bills, other than revenue bills, can start in either chamber of Congress.

      • Who writes bills? Not specified – could be the President, the AG, an interest group, a staffer, etc.

      • House of Representatives procedures for developing and passing a bill, generally:

        • initially referred to committee. (Since each committee’s chair controls the committee’s staff and agenda, he or she has the power to stall a bill by preventing the committee from considering it. 95% of bills “die” here.) A mark up is a committee’s drafting session, where members consider amendments and rewrite bills.

        • Once a bill is reported out of committee, it passes through the Rules Committee, where a resolution (the rule) governing floor debate is prepared (determining the amount of time allotted to debate and the scope of permissible amendments).

        • Hearings on the floor include testimony, debate, and proposals for amendments. Specifically:

          • (1) The House debates and votes on the bill’s rule.
          • (2) The House resolves into the Committee of the Whole House on the State of the Union (the full House following simplified procedures for purposes of debate).


          • (3) Pursuant to the rule, members offer amendments, which are debated and then accepted or rejected by unrecorded votes.

          • (4) The members resume sitting formally as the House and, if requested by one-fifth of the members, take recorded votes on any accepted amendments.

          • (5) A minority party member is recognized to offer a motion to recommit the bill to committee (for reconsideration?).

          • (6) The House will vote on the bill, as amended by the Committee of the Whole.

      • Senate procedures for passing a bill, generally:

        • (1) Bill is read.

        • (2) If no objections were heard, the bill is immediately read again.

        • (3) Bill is referred to committee, unless a majority voted to place the bill directly on the Senate calendar.

        • (4) A committee considers the bill.

        • (5) The bill is placed on the Senate calendar.

        • (6) The bill is called up for consideration.

        • (7) Debate about the bill occurs under the Senate’s unlimited debate rules. (At this stage, the bill can be blocked by a filibuster, or unlimited debate, which can only be ended by giving in or by the less-successful tactic of cloture (a two-thirds vote to end discussion).)

        • (8) The bill is read for a third time, followed by a vote on the bill, as amended by the committee and during floor debate.

      • Example: Civil Rights Act of 1964 was proposed by the President and went to the House Judiciary Committee. The Chairman referred to the antitrust committee b/c that comm. was packed with civil rights advocates.

      • Bicameral Reconciliation, Presentment, and Veto Power
        • Bicameralism: After approval in one house of Congress, the bill must be approved by the other for acceptance – either by acquiescence to any changes since it was last in that house or by going to a conference committee. [The Framers instituted the bicameralism requirement to protect against majority rule.]


        • After being reported out of committee, the reconciled bill goes back to the initial house for signing.

        • Presentment: The bill approved by both houses is then sent to the President for signature.

        • The bill becomes law:

          • If the President signs it; or

          • the President does not sign it, but when he returns it to Congress, both houses vote two-thirds majorities to override the President’s veto; or

          • the President does not sign it but does not send it back to Congress within ten days while Congress is in session.

        • Veto Power

          • In addition to returning an unsigned bill to Congress, a bill can be “pocket vetoed” if the President does not sign it but Congress adjourns within ten days of sending the bill to the President.

          • “Legislative veto” (refer to III.A.2 below) – an instrument by which Congress can terminate powers delegated to the Executive branch or otherwise disapprove of particular exercises of power by the Executive. INS v. Chadha, U.S. (1983), 1150 (refer to Cases chart #C1).
          • “Line-item veto” - the power of an executive to nullify or cancel specific provisions of a bill, usually budget appropriations, without vetoing the entire legislative package. Clinton v. City of New York, U.S. (1998), 373 (refer to Cases chart #C2): held that the line-item veto as granted in the Line Item Veto Act of 1996 violated the Constitutional separation of powers because it bypassed the bicameralism and presentment requirements of Art I § 7 by giving the President the power to unilaterally amend or repeal the text of statutes that had been duly passed by Congress; only a Constitutional amendment could make such a structural change. (Scalia dissented to say that, despite its name, the bill didn’t authorize a line-item veto; it only allowed for the President to “cancel” a spending item, which “is no different from what Congress has permitted the President to do since the formation of the Union.”)


    • Institutional

      • Theory approaches statutes from the perspective of the various institutions charged with enacting, implementing, and overseeing them.

      • Even after the “statutorification” of American law, the judiciary remains relevant because it serves to interpret statutes in “hard cases” not clearly resolved by statutory language. [Felix Frankfurter] once wrote that “[a] statute is an instrument of government partaking of its practical purposes but also of its infirmities and limitations, of its awkward and groping efforts.” (689).

    • Pluralist, Madisonian Thought (48)

      • Theory focuses on the role of interest groups in policymaking.

      • The Federalist Papers and James Madison argued that people naturally unite in factions with others who share a common interest, adverse to the rights of others or the public good.

      • Modern conception of interest groups:

        • Citizens organize into groups for the purpose of political action.

        • Pluralism results: political power is distributed across many political actors.

        • Conflicting interest-group desires are achieved through the process of politics.

      • Critics argue that political access is restricted and not representative of all individuals.

        • The majority (70% in one study) of interest groups with a “Washington presence” represent business interests, rather than broader public interests or less-advantaged groups.
        • Mancur Olson (51) argued in The Logic of Collective Action that rational actors will only participate in interest groups when the gain outweighs the cost. Thus, interest groups more often represent the interests of relatively few actors who stand to gain significantly.


        • Contrary to Madison’s beliefs, minority groups can dominate policy discussions and legislative processes, particularly when they are well-funded and organized. In fact, larger groups even have an advantage over larger groups that are less cohesive and sophisticated and suffer from the “free-rider” problem.

        • A corollary to Olson’s book, R. Douglas Arnold’s The Logic of Congressional Action:

          • Interest groups = “attentive groups.” Less-politically active individuals make up the “inattentive public.”

          • Congress will make decisions that account for the will of the inattentive public relative to certain factors:

            • the magnitude of the cost or benefit,

            • the timing of the cost or benefit (relative to election day),

            • the proximity of a voter to others similarly affected,

            • the actions of an instigator or policy entrepreneur who brings an issue to awareness of the inattentive public (ex: political opponent).

      • Public Choice theorists apply economic models to political processes.

        • Demand and Supply of Legislation based on Benefit/Costs










Concentrated_Costs___Distributed'>Distributed Costs

Concentrated Costs


Distributed

Demand:

Majoritarian – little group activity.

Entrepreneurial – ind. sparks inat. public against int-group.


Benefits


Supply:

Only Symbolic or No Action

Regulatory Capture (or I.G.-drafted compromise)


Concentrated

Demand:

Client – strong i.g.; little public due to free-riding.

Interest Group - i.g. against i.g.

Benefits


Supply:

Subsidies and power to i.gs.; often self-regulation.

No Action or Delegation to Agency Regulation.




        • Demand for Legislation based on Benefits/Costs (57):

          • i. Distributed benefits/ distributed costs (majoritarian politics) - little group activity.

          • ii. Distributed benefits/ concentrated costs (entrepreneurial politics) – policy entrepreneur takes up a cause and rouses the inattentive public; will be opposed by organized interest groups; can be a reaction to unfavorable client politics.

          • iii. Concentrated benefits/ distributed costs (client politics) – strong interest group participation but little organized opposition due to free-riding; dominated by logrolling (vote-trading or quid pro quo).

          • iv. Concentrated benefits/ concentrated costs – pits interest-group against interest-group.

        • Supply for Legislation based on Benefits/Costs (59):
          • i. Distributed benefits/ distributed costs - no bill or only symbolic action; sometimes, delegation to agency.


          • ii. Distributed benefits/ concentrated costs – ambiguous bill that delegates to agency regulation – despite regulatory capture (the theory that agencies charged with regulating an industry or making political value choices about particular issues become tools of the interests they were designed to regulate) – or i.g.-drafted compromise, so all sides can claim victory.

          • iii. Concentrated benefits/ distributed costs – subsidies and power to organized groups; often self-regulation.

          • iv. Concentrated benefits/ concentrated costs (interest-group politics) – pits interest-group against interest-group.

        • Ex: [Brewer]’s characterization in Holy Trinity of the passage of the immigration statute discusses the comprises made by legislators.

      • Optimistic Pluralism (an engaged public, as with Civic Republicanism)

        • Contrary to Madison’s dim view of the involvement of interest groups, as articulated in Federalist #10, optimistic pluralist argue that politicians often have motives other than monetary gain or re-relection when they make legislative decisions – goals such as ideological satisfaction or status and influence within the government.

        • The involvement of interest groups demonstrates public involvement in the political process.

        • Ex: [Brennan]’s characterization in Weber of the passage of the Civil Rights Act of 1964 gives a “rosy” view of legislative intent, in contrast to the political wheeling and dealing that occurred.

      • Criticisms of Pluralist or Public Choice View
        • Rent extraction – interest groups provide post-gov’t employment or donate money/gifts to politicians in exchange for a lack of disfavorable legislation, such as unfavorable tax law changes. This is in contrast to the idea that i.gs. only seek to receive positive benefits from legislation.


        • The market system does not hold. Money and organization do not always lead to political influence, according to empirical studies. Context-dependent:

          • I.gs. are more successful at blocking legislation than enacting new policy.

          • I.gs. more often succeed on issues that are not salient to the larger public and that are perceived as narrow, technical, nonpartisan issues.

          • I.gs. seek to utilize their resources where they will be most effective – where institutions are relatively sympathetic to their position or have procedures that they can use advantageously.

        • Traditional public choice theory neglected the role of the President who can have a domineering effect on the legislative process due to:

          • the President’s ability to have a more unified policy than the multi-membered Congress,

          • the Pres’s ability to generate public awareness and interest in an issue,

          • the Pres’s access to a wealth of resources, such as the Office of Management and Budget or the Treasury Dept’s Office of Tax Policy, which can generate draft legislation,

          • the Pres’s broader constituency of citizens throughout the nation, and

          • the Pres’s influence as the head of one of the major political parties.

        • Political decisions are not static; they are affected by circumstances and by deliberation upon an issue.

    • Formalism (588):

      • [Blackstone]: Judges are “depositories of law.” They do not make law, but declare the existing objective law (whether it be written statutes or prior judicial decisions).

        • Objective (judge-made, reasoned) law serves to preserve social order by providing:

          • Stability and
          • Predictability/Notice to citizens, who can make daily decisions relying upon the expressed law.


        • Common law is made gradually by reflective, politically-neutral discerners of natural law.

        • Legislative law is not “natural law.” It is ad hoc and made by political actors with ideological perspectives. Thus, statutes should be construed narrowly.

    • Legal Realism (590):

      • Around the beginning of the 20th Century, Oliver Wendell Holmes criticized legal formalism and articulated the following principles:

        • Judicial decisions could also be political and subjective.

        • Laws are the creation and elaboration of social policy considerations.

        • Law should be pragmatic and utilitarian rather than formal.

      • Harvard’s Dean Roscoe Pound advocated policy science that transformed into law through legislation and administration.

        • In a 1908 Harvard Law Review article, Pound argued that the common law could take four possible approaches to statutes (594):

          • 1. Judges view statutes as superior to common law and as principles to be reasoned from;

          • 2. Judges view statutes with equal weight as the common law and should reason from them to the same extent;

          • 3. Judges should apply statutes directly, although liberally, but choose not to reason from them; or

          • 4. Judges should apply statutes strictly and narrowly – only to the cases to which the statutes have express authority.

        • While the approach #4 represents “the orthodox common law attitude,” Pound argues that the common law is tending toward #3 and should ultimately work through #2 and on to #1.

      • Institutional Competency:
        • Louis Brandeis argued that the balancing of policy interests is best done by the legislature, not the courts. Int’l News Serv. v. AP, U.S. (1918):


          • “Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news … Courts would be powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred or to introduce the machinery required for enforcement of such regulations.”

        • Professors Felix Frankfurter and James Landis further argued that specialized and expert agencies should elaborate and apply policy rules.

          • “Expertise not only solved problems, but offered neutral criteria for the solution of problems, which obviated democratic theory concerns with broad legislative delegations to agencies.”

    • Judge Benjamin Cardozo’s Rationalism (593)

      • Though a judge may create law, “[h]e is to draw his inspiration from consecrated principles.” (The Nature of the Judicial Process, 1921).

      • Principles emerge from the testing, retesting, and reformulation process of common law judging.

      • Example: Although N.Y.’s inheritance laws could be read to allow a murderer to inherit from his victim’s estate, the Court of Appeals denied his right under the principle that one should not be able to profit from his own wrongdoing. “[T]he social interest served by refusing to permit the criminal to profit by his crime is greater than that served by the preservation and enforcement of legal rights of ownership.” Riggs v. Palmer (1889).

      • Lon Fuller furthered the case for a rationalist approach.

        • He argued that facts could not be separated from values and law from moral evaluation because one’s values determine which facts one notices and prioritizes.
        • Contrary to totalitarian societies, a democracy should encourage the organic exchange of ideas about the law.


    • Illustrative Case – State v. Warshow, VT (1979), 595

      • refer to Cases chart, #C3:

    • Legal Process, 1940-1973 (middle-ground response to Legal Realism and Formalism) –

      • Henry Hart and Albert Sacks’ The Legal Process: Basic Problems in the Making and Application of Law argued that the process by which laws are enacted and applied determines to a large extent the quality of its substance.

        • “’[T]he best criterion of sound legislation is … whether it is the product of a sound process of enactment.’”

        • “The principle of institutional settlement expresses the judgment that decisions which are the duly arrived at result of duly established procedures … ought to be accepted as binding upon the whole society unless and until they are changed.”

        • Procedures that facilitate well-informed and well-reasoned policy decisions by the Legislature are:

          • 1) an openness to the views of all affected persons and groups,

          • 2) a focus on factual information subjected to expert and critical scrutiny, and

          • 3) public deliberation through which the pros and cons are thoroughly discussed.

      • Purposive Statutory Interpretation (718):

        • Respect the role of the Legislature “as the chief policy-determining agency of the society, subject only to the limitations of the constitution under which it exercises its powers;”

        • “Be mindful of the nature of law and of the fact that every statute is a part of the law and partakes of the qualities of law, and particularly of the quality of striving for even-handed justice.”
        • Determine the purpose of the statute, and construe the text to achieve that purpose such that


          • the text is not given a meaning it “will not bear” (this caveat operates mostly to narrow, rather than expand, the scope of statutes)

          • and the meaning would not violate any clearly-stated policy (such as the policy that words marking a boundary between criminal and non-criminal behavior “should speak with more than ordinary clearness” and a presumption that a departure from generally-prevailing principle or policy should be expressed clearly.)

        • “Unenacted intentions or wishes cannot be given effect as law.”

        • “Imaginative Reconstruction”: Per Heydon’s case (693), the court should look to the immediate purpose for which the statute was enacted to address. The court should “put itself in imagination in the position of the legislature ... [assuming], unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonably purposes reasonably.”

          • Instances of “unquestioned application” of the statute will be the best guide to the statute’s application to other situations.

        • The court can use legislative history or other evidence “to develop a coherent and reasoned pattern of applications intelligibly related to the general purpose.”

      • Legislators may enact:

        • Rules, when the legislature has sufficient information to do so, or

        • Standards, thereby delegating the task of determining specific rules to courts, agencies, or private institutions. Standards should then be judged according to established principles and policy objectives that benefit society in general.
      • Defense of Statutory Canons (946): “Maxims should not be treated, any more than a dictionary, as saying what meaning a word or group of words must have in a given context. The simply answer the question whether a particular meaning is linguistically permissible, if the context warrants it.” Can the words “bear a particular meaning”? (719).


      • The Case of the Speluncean Explorers, created by Lon Fuller in 1949 (712)

        • Facts: A group of explorers were trapped in a cave and recognized that the only way to survive was to eat one of the members of the group; they drew lots but selected Whetmore (W), who had withdrawn from the selection of lots just before they were drawn (even though he had originally proposed the solution). After the surviving explorers were saved from the cave, they were convicted for murdering Whetmore. The statute at issues states “Whoever shall wilfully take the life of another shall be punished by death.”

        • [Truepenny, C.J.] (Formalist): argues for upholding the conviction for murder for the 4 surviving spelunkerers. The language of the statute “permits of no exception applicable to this case.”

        • [Foster] (Purposivist): argues that the statute is inapplicable to the case, which should be governed instead by natural law. Like self-defense, which is an allowed defense even though it is not within the statute (to deter murder), overturning this conviction could be reconciled with the purpose of the statute, if not the wording of it. [Golden Rule: Construe a statute according to the ordinary meaning of its text, unless doing so would be in derogation of the purpose of the statute as a whole.] “The correction [by the judiciary] of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective.”
        • [Tatting]: If we are to interpret a statute in light of its purpose, how so when it has multiple purposes that may conflict in a particular case or its purposes are disputed? Another plausible purpose could be “to provide an orderly outlet for the instinctive human demand for retribution” (to prevent victims from taking the law into their own hands). Furthermore, self-defense falls outside of the statute b/c it is not wilfull.


        • [Keen] (cf. Hill in Warshow): The difficulty of deciding this case rests upon a failure to distinguish its legal from its moral aspects. “To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.” Emphasized the supremacy of the legislative branch in making normative decisions and that the legislature should change the law if they don’t like the results of its implementation. Judicial decisions that change statutes supplant the ability of the democratically-elected representatives to change the law.

        • [Handy] (Legal Realist): Judges should treat the abstract principles as instruments to reach practical goals. Pragmatically, the court should follow public opinion and declare the men innocent.

        • Issues:

          • The purpose of the law may be to deter, but can you deter this action, which may be viewed as inevitable?

          • Was the murder a socially optimal outcome? It saved a dozen lives

            • But we have a victim. Does the law serve him? Did the victim have a right to remove himself from the lots process?

            • Does Whitmore’s withdrawal from the deal change the dynamic?

          • Advantages of Truepenny/formalist approach – treating the law as it literally is.

            • Allows legislative response, or executive intervention if absurd outcome.

            • Predicability about outcome ex ante

            • Avoids difficult factual inquiries (e.g. motives for selection)

            • Does/Should the sentence influence our understanding of “willfully take the life of another”?
              • Some judges read clauses as a whole


              • Clever lawyering: Doesn’t say when they should be put to death. But what was the purpose of the death clause? We get to the same discussions.

            • Does the difference of elected v. appointed judges change the outcome?

            • Can we vary in our lenses?

              • Law requires that we can’t agree with both the government and defendants (responsibility as a clerk)

            • Optimistic pluralism: see infra

      • Critique of Legal Process (750):

        • Legislators are not always “reasonable,” as Hart and Sacks seem to assume, and often strike deals that represent compromises between constituencies and “rent-seeking” interest groups.

          • Counter: Legal Process represents a normative theory, not a descriptive one. If legislators strike a compromise contrary to the public good, judges should not enforce the deal but should enforce the larger purposive policy goals.

        • The Legal Process approach does not utilize empirically-based economic analyses, as Posner’s approach does.

        • While the legal process approach purports to be value-neutral, judges will make unarticulated value choices under the auspices of a neutral tool.

        • Textualists and Formalists argue that l.p. sacrifices the virtues of a “plain meaning” approach which is ideally more objective and allows a “rule of law” rather than a “rule of men” whereby citizens can have reasonable expectations about how to structure their affairs.

    • Post-Legal Process, 1974-present (622)

      • Law and Economics

        • Law should reflect an ex ante economic calculus that weighs costs and benefits to society using empirical information.
        • Efficiency is a major objective for the government. (In Chadha, though, [Burger] argued that “it is crystal clear from the records of the [Constitutional] Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency. … [The historical documents] underscore the common desire to define and limit the exercise of the newly created federal powers affecting the states and the people” (1152).


        • Distinguished between rational, objective, neutral efficiency and irrational, subjective, and partisan rent-seeking.

        • Canons of statutory construction rest on wholly unrealistic conceptions of the legislative process, such as assuming legislative omniscience. “[A] statute necessarily is drafted in advance of, and with imperfect appreciation for the problems that will be encountered in, its application.” (946).

      • Critical Scholarship (625)

        • All law, even judge-made law, is arational, subjective, and political.

        • Re: Speluncean Explorers (838)

          • Feminist Naomi R. [Cahn]:

            • Judgments should combine what Carol Gilligan described as

              • an “ethic of justice,” which seeks to apply laws such that justice is served, and

              • an “ethic of care,” which respects the interconnectedness of people.

            • Considering the ethic of care, the explorers discussed their options and seem to have made a decision that reflected respect for one another. “Power was exercised responsibly and compassionately, in consideration of the rights and interests of the community of explorers.” On the other hand, because Whetmore withdrew his consent before the lots were cast, a judge could find the Ds guilty of murder under an ethic of care.

            • Considering justice, conviction or acquittal could also be supported because the Ds violated the letter of the law but could argue that it was in self-defense.

          • Mary I. [Coombs]:

            • Consider the effect the decision would have on other cases, such as battered women defense cases, which involve deliberation but can still involve successful self-defense arguments.

          • Critical Race theorist Dwight L. [Greene]:


            • Consider the social circumstances of the incident, which would have affected the choices and power available to the parties.

        • (626) [Hill]’s argument for judicial deference to the legislature in Warshow has no neutral basis. “The traditional justification for deference is that the elected legislature represents the majority will better than the nonelected judiciary, but is this factually true? …The vast majority of the electorate is utterly passive and, to the extent they express political preferences, those preferences are so conditioned by their relative ignorance and inequality as to be meaningless. Once elected, legislators are excessively responsive to the monied and the well-organized, to the detriment of groups already disadvantaged in American society…”

        • Legal Process theory wrongfully assumes that formal access to the political process entails meaningful access. It also wrongfully connects peace with order and violence with disorder.

        • The solution to representative laws is representative law-makers.

II. Legislation and Statutory Interpretation


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