Legislation and Regulation Fall 2012 Class: Mon. & Wed., 1:30 p.m. 2:45 p.m.

Room 212

Professor Gary Lucas Tel: 817.212.3922 [email protected]

Office Hours: Monday and Wednesday from 3 p.m. to 4:30 p.m. You can also make an appointment or just stop by. Required Text & Materials: Legislation and Regulation, John Manning and Matthew Stephenson. Attendance Policy: You must comply with the law schools attendance policy, which is explained in detail in the Student Programs, Policies, and Procedures handbook. Laptop and Other Electronic Devices: Subject to the disability policy, you may use your laptop in class solely for the purpose of taking notes. You may not use your laptop or other electronic devices for any other purpose, including surfing the Internet, checking email, texting, sending instant messages, and playing computer games. Taping Policy: Subject to the disability policy, you may not tape or otherwise record a class without my permission. Law School Disability Policy: Texas Wesleyan School of Law adheres to a disability policy that is in keeping with relevant federal law. The law school will provide appropriate accommodation as determined by the Assistant Dean of Student Affairs, Rosalind Jeffers, in consultation with the Director of the Counseling Center, Dr. Michael Ellison. Students must notify Dean Jeffers of any permanent or temporary disabilities and must provide documentation regarding those disabilities prior to the granting of an accommodation. Due to the law schools policy of testing anonymity, students should not discuss their disabilities with professors. For assistance, students should consult with Dean Jeffers. TWEN: During the course of the semester, I will post assignments and other materials on TWEN, so it is important that you register as soon as possible. Periodically, I will send emails to the class through TWEN. So when you register, use an email address that you will check frequently. If you have questions about TWEN, you should contact the law schools Westlaw representative. Grading: Your grade will depend entirely on your performance on the final exam, which I will discuss in detail later in the semester. The exam is a closed-book exam. Course Description: The primary objective of this course is to introduce you to the role of statutes and administrative regulations in the practice of law, including their creation and interpretation. The course is a building block for courses in legislation, administrative law, and a wide range of specialized courses that rely on statutory and regulatory law, including bankruptcy, commercial law, environmental law, intellectual property, securities regulation, and tax law. This course will teach you a fundamental skill. Statutes are often unclear, with one
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interpretation working in your clients favor, but another working against your client. In that case, you must understand how courts interpret statutes so that you can make the best argument on your clients behalf. The Role of this Course in the First-Year Curriculum: This course differs from your doctrinal courses in three significant ways. First, doctrinal courses focus on a specific substantive area of law. For example, in Contracts, you will learn the rules related to enforcing agreements. By contrast, Legislation and Regulation does not focus on a specific substantive area. Instead, this course introduces you to the various approaches that judges use in interpreting statutes. The course also introduces you to administrative law. Every lawyer must be familiar with statutory interpretation and administrative law because statutory and/or administrative law are important in many areas, including bankruptcy, environmental law, intellectual property, tax law, securities regulation, commercial law, corporate law, criminal law, family law, and even contracts. Second, some doctrinal courses focus on common law rules developed in judicial opinions. Lawyers must understand the common law and know how to carefully analyze the opinions that judges draft. Nevertheless, many areas of law are now governed by one or more statutes and by administrative regulations. In these areas, judicial opinions are still important, e.g., they may fill in gaps left by the statute, but the primary source of authority is the statute, which is supplemented by regulations. Accordingly, in Legislation and Regulation, we will read cases, but the cases differ from those you will read in some of your other courses in that they involve statutes and administrative regulations. Third, in your doctrinal courses, you may read a case and learn a specific rule of law, e.g., the elements of battery. This may cause you to think that the goal is to read a case and identify the black-letter law. But in Legislation and Regulation, you will learn fewer rules. Judges frequently disagree with respect to the approach they should use in interpreting a statute. For example, some judges rely heavily on legislative history, while others do not. Often, there are no hard-and-fast rules, and there is no right answer. In reading the cases, rather than identifying the black-letter law, you will generally need to focus on the approach that the court uses in interpreting the statute. You need to thoroughly understand the various approaches to statutory interpretation so that you can argue effectively on your clients behalf. You need to be able to make arguments that will appeal broadly to judges no matter which approach they favor. Briefing the Cases: Because this course differs somewhat from your other courses, you may need to take a slightly different approach to briefing cases. Most of the cases that we read will deal with situations in which it is not clear how some specific statutory language should be interpreted in applying the relevant statute to the facts of the case. (This is particularly true during Part I of the course, which covers legislation.) The issue is usually what approach or rules does the court follow in interpreting the statute and resolving the case. The cases that we will read involve statutes from various substantive areas, e.g., environmental law and employment law. But you do not need to focus on the specific substantive rule that is at issue in the case. Your goal is not to learn environmental law or employment law. Instead, you should take the following approach in briefing the cases: First, identify the specific statutory language at issue. If I call on you in class, you should be able to tell me specifically what language the court is concerned with. Second, identify the possible ways in which the statute could be interpreted. Usually, one party will argue for one interpretation and the other party will argue for another. You
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should know which party supports a given interpretation and the argument they make in support of it. Third, identify the interpretation that the court determines is appropriate and which party wins as a result. Fourth, consider why the court settled on the interpretation it chose. What approach to statutory interpretation did the court use, i.e., intentionalist, purposivist, or textualist? Did the court rely on a canon of construction? Did the court rely on legislative history? Fifth, consider whether you agree or disagree with the court and why.

Assignments: Below is a list of topics that we may cover. As the semester progresses, I may add or delete topics. During the semester, I will post detailed assignments on TWEN. Part I: Legislation and the Legislative Process I. Introduction: Legislative Process and Foundational Theories of Statutory Interpretation II. The Letter of the Law Versus the Spirit of the Law a. The Classic Approach b. The New Textualism c. Textually-Constrained Purposivism d. Legislative Purpose and Dynamic Statutory Interpretation e. Judicial Correction of Legislative Mistakes: Absurdity and Scriveners Error III. What is the Text? a. Scientific or Ordinary Meaning? b. Legal Terms of Art? c. Colloquial Meaning or Dictionary Meaning? IV. Legislative History a. The Post-New Deal Approach to Legislative History b. The Textualist Critique of Legislative History c. The New Synthesis d. Other Potential Uses of Legislative History V. Semantic Canons of Construction a. The Expressio Unius Canon b. The Noscitur A Sociis Canon, the Presumption Favoring Consistent Meaning, and the Presumption against Surplus Usage c. The Ejusdem Generis Canon d. Other Canons VI. Substantive Canons of Construction a. The Rule of Lenity Part II: Administrative Agencies I. Introduction to Administrative Law and Overview of the Regulatory Process II. Notice-and-Comment Rulemaking III. Alternatives to Notice-and-Comment Rulemaking IV. Statutory Interpretation in the Administrative State a. Judicial Review of Agency Statutory Interpretation
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b. Chevron and Textual Interpretation c. The Limits of Chevrons Domain

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