Legislation Law Prof Blog

Last year's best read on legislative process?

As you are likely aware, the academy suffers from a shallow bench of scholars who carefully mine the field of legislative process. I share William Eskridge’s “collective lament” that such a critical area is woefully under-illuminated. The Legislation Law Profs Blog constantly seeks to showcase some of the most interesting and impactful studies and commentary on legislative process, drafting, statutory interpretation, and policymaking.

Recently, I was reminded of an article that just might be my vote for the best read on legislative process last year: Abbe Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 STAN. L. REV. 901, 915 (2013). Here's the SSRN link and the abstract of the article is reproduced below.  What do you think?  Do you have other nominees for most impactful reads published last year?  Let us know!

Abstract:     

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how "neutral" some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

The Scottish Independence Vote and the American Tea Party: What Do they Suggest for the Future of Government?

At first blush, it seems that the vote for Independence in Scotland is miles away (or very far across the pond) from the Tea Party that has taken root in the United States. However, policy wonks suggest that the Scottish Yes movement has more in common with the right-wing tea partiers than meets the eye.

While voters rejected independence from the UK by a margin of 55% to 45%, the impetus for the vote stemmed from the belief that Westminster bureaucrats are out of touch with the needs of Scots. Similarly, tea partiers believe that Washington elites are incapable of effective governance.

Interestingly though, pro-independence Scots are on the opposite end of the spectrum from American tea partiers. As the New York Times notes, Scotland is far more liberal than the British ruling party (Scots favor increased social welfare spending, are strongly pro-green, and are antinuclear) whereas tea partiers are to the right of America’s executive and half of the legislative branches (though that could be just the executive branch after November if the Senate changes hands in the midterms).

What does this mean for advocates trying to advance policy? How do governments the world over regain the trust and faith of their citizens? There are no quick answers to these questions, but unless the bridge between the federal government and local populations are repaired, we will see more parties capitalize on discontent or event mount full scale independence movements (we’re looking at you, Montreal and Catalan).

Ever Heard of the Powell Memo?

Have you ever heard of the Powell memo? If not, take a moment to read on.

The Powell memo refers to an August 23, 1971 “confidential memorandum” written by Lewis F. Powell, Jr., a corporate lawyer in Richmond Virginia, to the Chairman of the Education Committee of the U.S. Chamber of Commerce. A few months after writing this memo, Richard Nixon appointed Powell to the Supreme Court. Powell took his seat on the bench on January 7, 1972.  The Powell memo significant because it is often regarded as the earliest and clearest playbook for neoliberalism.

Here is a link to the original document.

Here are some additional perspectives on the significance of the Powell memo:

•  Bill Moyers Book Excerpt

• Powell memo plus some commentary

• Critical perspective on use of memo

What do you think about the Powell memo?  What might have been its initial impact on legislative agenda and policy advocacy?  Does it have a continuing impact today?

Environmental Policy: The People’s Climate March

Sunday saw the largest-ever demonstration on climate change. Dubbed The People’s Climate March, the New York City event drew over 400,000 people. Protestors included politicians (Mayor Bill DeBlasio, former Vice President Al Gore, UN Secretary-General Ban Ki Moon, Senators Chuck Schumer, Sheldon Whitehouse, and Bernie Sanders), environmentalists (Jane Goodall, Vandana Shiva), and even actors (Mark Ruffalo, Leonardo DiCaprio).

The march is the first in a series of events held around the world to spotlight global warming ahead of Tuesday’s UN summit. During the summit, President Obama and other world leaders in government, finance, and business, will announce policy initiatives to combat global warming. 

For more information, see: 

http://peoplesclimate.org/ 

http://www.huffingtonpost.com/2014/09/21/peoples-climate-march_n_5857902.html

THEORY & ADVOCACY: New Article on Restrictive Voting Laws

As a follow-up to our prior post on the Voting Rights Act, here is an interesting article presenting new data regarding restrictive voting laws—“Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act.”

Here is the abstract:

In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.

The pulse of the cities?

Most readers of this blog are probably painfully aware of the fact that a drafter can compose the most beautiful piece of legislation ever, but it won't mean much if it doesn't have the political support needed to pass and get signed into law.  Gauging such support can be difficult to do ahead of time.  But one thing we do know is that elected officials and their staffers have been known to look to polling data -- even if they sometimes are reluctant to admit it.

Readers who are interested in innovative legislation that affects cities would do well to check out the "State of the City Poll" that the editors of the CityLab blog have been releasing in dribs and drabs in recent days.  Yesterday's drib discussed support for local government, and prior drabs have touched on everything from opinions about local charities to support for renewable energy.  

Although the wonkish among us might nit-pick the wording of some questions, and wish the CityLab editors would just drop the raw data all at once, rather than releasing it bit by bit, the series is well worth checking out.

Crimes of Passion and Parenthood

I am a proud mother of two incredible, beautiful children.  At times, as in everyone's life, somene (usually another kid) is mean or cruel to one of my kids and it raises my hackles.  I want to protect my children from everything, and yet I know that is neither possible, nor truly desirable (if they are to learn to be independent, strong, and street-smart). 

And then I hear of some horrible tragedy in the news... when a child has been the victim of a horrible crime.  I think to myself:  what would I do, as a parent, if such a tragedy hit my family?  Frankly, I shudder at the dark places that question sometimes takes me. 

Recently, a Texas grand jury refused to indict a father who killed a man he found allegedly sexually abusing his daughter.  Learn more here.  What would I do, I wondered, if I was in the father's shoes?  Would I attack her abuser?  What more might I do?  What is the role of grief, parenting, and restitution when your child is the victim of violence?  Does it matter if perpetrator of such violence against a child is an adult?

Today, an article challenged me to consider whether my instincts would change if another child were the perpetrator of such violence.  The article considered one parent's effort to pass a new law that would allow victim's families to pursue criminal charges against the parents of a young perpetrator.  Is it be a crime to parent a criminal?  Should it be?

Of course, being a parent is not simple- for anyone.  It is a complex journey with no bright line rules to follow.  What should the laws be when a child (how about your child) is a victim of a violent crime?   What should the law be when a child (how about your child) is the perpetrator of a violent crime against another child?  What is the role of grief, parenting, restitution, blame, and prevention in all of this?

I, for one, am going to go outside to sit in the sun for a while.  I know these dark places will continue to shadow me as long as I am so blessed to be a parent of these two incredible, beautiful children.

 

California Legislature Passes first "Yes Means Yes" Bill

Last week, the California legislature passed an affirmative consent sexual assault bill. Called the "Yes Means Yes" bill, the legislation requires "students engaging in sexual activity [to obtain] 'affirmative consent' from both parties — a clear threshold that specifically could not include a person's silence, a lack of resistance or consent given while intoxicated." Further, the bill requires colleges to help victims of sexual assault seek medical care, counseling, legal assistance, and other services. 

The Department of Education is currently investigating 55 colleges and universities over their handling of sexual abuse crimes. 

For more information, see NPR.