legislation & statutory interpretation 1 of 6 legislation & statutory interpretation fall...
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Legislation & Statutory Interpretation
Fall 2014
Professor Bryant (T, W & Th, 11:10-12:05, room 306)
Course Introduction
& Syllabus
Course Description and Objectives: This course will explore some of the various
procedural, constitutional, and jurisprudential issues raised by the role that the state and federal
legislatures now play in our constitutional order. In particular, the course will focus on legal
questions relating to the election of representatives, the procedures governing and protecting
legislative deliberation; and the interpretation of statutes by courts and administrative agencies.
Chief among the many aims of the course is to introduce you to the legal problems posed by
legislative government, in the hopes that as practicing lawyers you will be more effective
participants in the legislative process and in the subsequent implementation of statutes.
Required texts: WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY, & ELIZABETH GARRETT,
CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (West
4th ed., 2007) (hereinafter “CB”).
ESKRIDGE, FRICKEY & GARRETT, STATUTORY INTERPRETATION STORIES (Foundation,
2011) (hereinafter “Stories”).
Course web page: I have set up a TWEN (The West Education Network) web page for
this course. Please register on that web page as soon as possible by going to www.westlaw.com,
signing on with your student password, selecting first TWEN from the menu at the lower left-
hand side of the screen, and then on the TWEN page selecting the web page for this course.
TWEN will then walk you through registration. You will need to supply an email address that
you check on a routine basis. When one of us adds anything to the course web page, you will
receive an email message notifying you of this addition. It is your responsibility to keep your
TWEN email address current and to check your email frequently. Throughout the semester I will
use the TWEN page to distribute course-related materials, to address administrative issues
(including revisions to assignments or, if need be, cancellation and rescheduling of class
sessions), and to answer student questions about the course. You are responsible for all material
and information distributed via the TWEN page, without regard to whether I also mention the
same in class. Should you have any difficulty using TWEN, please contact your student westlaw
representative. Please let me know should he or she prove unable to remedy any problems you
may have.
Students with Disabilities: If you have a disability that requires assistance, you will
need to contact Associate Dean Oliver for coordination in your academic accommodations.
Class Attendance, Preparation for Class, and Grading: At the beginning of each
class session, I will take note of attendance. More than four unexcused absences during the
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semester will lower your final grade by ½ a letter grade (i.e. from a B+ to a B or from an A- to a
B+) (see discussion of grading, below). More than eight unexcused absences may result in your
withdrawal from the course. Whether such a withdrawal would be deemed “authorized” or
“unauthorized, failing” would ultimately be the decision of Associate Dean Oliver. (I would, of
course, contact you and offer you an opportunity to explain your absences before asking that you
be removed from the course.) An excused absence does NOT count against EITHER of these
tallies. If you are seeking an excused absence, please give me a brief explanation in writing (or
by email). Illness or personal or family emergencies always constitute valid excuses for missing
class, and I will entertain other grounds for excuse on a case by case basis. Of course, I will also
honor the College’s policy of respecting observance of any religious holidays.
Participation Grade: Thirty-three percent of your final grade in the course will be based
on your class preparation and participation. You are expected to complete all the assigned
reading before each class session and to come to class prepared to discuss it. In addition, on six
occasions of your choosing during the semester, your special responsibility will be to post in the
relevant discussion forum on the TWEN page a 300-700 word comment on the reading no later
than 8:00 a.m. on the day of class. The comment should be designed to spark discussion and can
take the form of observations, criticism and/or questions for the class. You will also be expected
to take an especially active role in that day’s class discussion. All of us, however, will in the
morning before class review and reflect on that day’s postings and come ready to discuss them.
At your first opportunity, please sign up on the TWEN page to do this for six class sessions via
the sign-up sheet labeled “class discussion.” The final three class sessions in the semester will
be devoted to presentation and discussion of your research papers. Please pick a date to do so on
the “research presentation” sign-up sheet. Your class participation grade will be based on your
postings, in-class comments, and end-of-the-semester research presentation.
Research Paper: The remaining 67% of your final grade will be based on your research
paper, the final draft of which will be due on the last day of the examination period (electronic
submission via the course TWEN page is required for both drafts of the paper and for all other
assignments). You will find in the “papers” section of the course TWEN page a (not exclusive)
list of possible research-paper topics, and I will of course be delighted to chat informally with
you about possible topics at any time during the first half of the semester. Sometime before our
September 25 session, you each must submit a one-to-two page research plan which identifies
the issue you propose to examine, lists some of the sources you propose to review, states your
tentative thesis, and presents a rough outline of your expected argument. I will review these and
return them to you within two weeks.
Your first draft of the paper will then be due before our November 4 session (early
submission of this draft is most strenuously encouraged). While not “final” this draft should be
both complete and carefully proofread. I will review your drafts and return them to you within
three weeks of submission. Absent other arrangements, you will then have until the close of the
final examination period to revise your draft and submit your final paper, which should be at
least 30 pages, double-spaced with single-spaced footnotes, and one-inch margins.
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Office Hours and Contact Information: Please feel free to contact me as often as you
wish to ask me questions or communicate any suggestions or concerns about the course or law
school generally. My office is in room 426 (phone: 556-0099), and I will make every effort to be
there, available to meet with you (and take your phone calls) at the following times (at a
minimum):
Tuesdays & Wednesdays 4:00-5:00
I realize these office hours are quite lean; they are a floor, not a ceiling. I will also frequently be
available at my office at other times and at any mutually convenient time by appointment. My
email address is [email protected], and I will try to check my voicemail and email messages
at least once each business day. (I may, though, take more than a day to get back to you.) I
encourage you to write me comments or questions about the subjects we will be covering in
class. As often these questions will be of interest to your fellow students, I reserve the right to
forward your questions and my answers to your classmates, unless your email asks that your
communication remain confidential, in which case I will always honor the request for
confidentiality.
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Reading Assignments: The lesson plan for the course is set forth below. I will, I am
sure, make additions and/or deletions as we progress through the semester. “Handouts” may be
found on the course TWEN page.
Reading Assignments
# date subject assignment (in CB unless stated otherwise)
1 8/26/14 Intro 1-38
2 8/27/14 Same 47-65 & Buchanan Handout
3 8/28/14 Same 65-82 & 38-47
4 9/2 Intro to Interpretation 82-104 & Stories at 95-125
5 9/3 Same 104-121
6 9/4 Representation Formal Equality
123-35 & Baker Handout
7 9/9 Race and the Voting Rights Act Shelby County Handout
8 9/10 Political Gerrymandering 174-95
9 9/11 Campaign Finance Handout
10 9/16 Deliberation
Bribery & conflicts of interest 299-318
11 9/17 Gratuities Sun Diamond Handout
12 9/18 Lobbying 318-24 & Lobbying Handout
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# date subject assignment (in CB unless stated
otherwise)
13 9/23 Statutory Interpretation
Theories: Holy Trinity 691-712 & Stories at 2-35
14 9/24
Theories: Legal process
718-29, 732-37, & 739-42
15 9/25
Theories: Plain meaning
(topic proposals due)
749-64 & Stories at 58-90
16 9/30
Theories: New textualism
765-81
17 10/1 Same as above 781-95 & Stories at 226-56
18 10/2 Research Methods None
19 10/7
Theories: Whither hence?
795-818
20 10/8 Same as above 818-830 & Stories at 334-64
21 10/9 Doctrine: Textual canons 847-68
10/13-17 Fall Break None
22 10/21 Textual canons, pt. 2 868-80
23 10/22 Substantive canons, pt. 1 880-903
24 10/23 Substantive canons, pt. 2 907-22
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# date subject assignment (in CB unless stated otherwise)
25 10/28
Substantive canons, pt. 3
922-41 & Stories at 196-225
26 10/29 The Canons: An Overview 941-55
27 10/30 Common law as background 955-71
28 11/4 (Real) History as background
(paper drafts due) 971-81
29 11/5 Legislative history: committee reports
981-98
30 11/6 Legislative history: drafter or
sponsor statements 1000-1014 & Stories at 258-93
31 11/11 Same as above (& canis silentus) 1014-1026
32 11/12
Same as above when post-
enactment
1027-47
33 11/13
Legislative inaction
1047-66 & Stories at 126-63
34 11/18
Significance of other statutes
1066-81 & 1089-1100
35 11/19 Deference to Admin. Agencies? 1197-1223 (or 1227) & Stories at 164-
94
36 11/20 Same as above No new assignment
37 11/25 Research paper presentations none
38 11/26 Research paper presentations none
11/27 Thanksgiving Holiday none (of course)
39 12/2 Research paper presentations none