Curriculum

Legislation

B554 is taught by Popkin, D. Widiss

The course is primarily about statutory interpretation.

Part I of the materials (in Chapters 1-3) discusses the historical evolution of judicial approaches to statutory interpretation.

Part II (The Technique and Theory of Statutory Interpretation Chapters 4-7) discusses specific techniques that have been advanced for interpreting statutory texts. Chapter 4 deals with textualism -- the variety of ways that a text can acquire meaning and the various ways that the text can be uncertain. Chapter 5 discusses purposivism and intentionalism, which look for evidence statutory meaning outside the text. Chapter 6 provides some obvious examples of the influence of substantive background considerations on statutory interpretation the substantive canons of construction. Part II concludes with a separate Chapter 7 on change -- how judicial interpretation of statutes reacts to changing cirucmstances.

Part III (Lawmaking Responsibility and Competence) considers the impact of administrative lawmaking (Chapter 8) and legislative history (Chapter 9) on statutory interpretation. Chapter 10 discusses legislative and judicial efforts to establish rules of statutory interpretation.

Part IV considers Statutes as a Source of Law. Chapter 11 examines how statutes can be extended both when there is and is not a judicial common law power. Chapter 12 looks at a special corner of this issue judicially inferring a private cause of action when the statutory text is silent. Chapter 13 looks at the interaction of multiple statutes e.g., when later law might change prior law and when prior law tries to influence how later law is made.

Part V on the Lawmaking Process takes up some issues which do not involve statutory interpretation. It discusses state constitutional law, which is otherwise likely to go unnoticed in law school. Chapter 14 looks at the Legislature, including state rules on procedural requirements for legislation (such as the one-subject stated in its title rule) and substantive limits on legislation (such as prohibiting special legislation). It also considers how Direct Democracy (initiatives and referendums) applies those rules. Chapter 15 deals with the relationship of the Executive and Legislative branches (for example, the line item veto and the legislative veto).

A dominant theme in the course is pragmatic judging, which in this setting means that the judge is influenced by substantive values to determine the meaning of a statute (whatever judges may say in their confirmation hearings). Substantive concerns may be front and center or may be lurking in the wings, but they are always present in the judges mind. This is apparent from reading judicial opinions carefully, which is what the course challenges the student to do. To that end, we often focus on opinions written by specific judges, such as judges Hand, Frankfurter, Stevens, Scalia, and Kennedy (among others), whose interpretive approaches are often out in the open and sometimes hard to figure out.

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We meet from 8:25 a.m.-9:40 a.m. Monday through Thursday, unless there is a holiday. The course is compressed so we meet from January 10 through March 1; the exam is over two days during regular class time, March 5 and 6.

The exam will be the conventional type, testing your understanding of the concepts relevant to statutory interpretation and your ability to critique arguments about the right way to interpret legislation. The exam is completely open-book; you can bring anything into the exam that you think will help, including prepackaged material on your computer.