Monday, January 11, 2010

Lessons from LegReg

I thought I’d tell you all a little about what I have been learning these last few months.

Probably my favorite class was Legislation and Regulation. This class is new to the curriculum at Harvard. Many people take administrative law, which is about the legal issues surrounding federal agencies (the Environmental Protection Agency, the Federal Reserve, the Food and Drug Administration, OSHA, etc.). The latter third to half of my class was a somewhat cursory introduction to these matters.

There are a lot of constitutional and legal issues surrounding agencies. When does the president appoint someone who works at the agency? Does the Senate have to approve every appointment? Can the senate remove agency heads? Can the legislature have a veto over agency actions? How independent is an independent agency? What reasons can an agency head be removed for? Does the president have unfettered removal power over every agency official? If not, which ones and why?

These are only the beginning….

Then there was statutory interpretation, which is why I loved the course. Many people fancy that they have an opinion about the constitution and statutes should be interpreted. I had opinions about this too. And frankly, I was way out over my skis in having those opinions.

It’s very easy to pontification about these matters, but when you get in to the middle of them, it’s thousands of times more complex than you would think. And it’s not just because lawyers are involved (although that compounds the problem). Even the simplest statute runs into absurd applications. For example, there is this old case where it was a crime to stop the mail carrier from completing his duties; a mail carrier who had murdered someone was arrested and then initiated a proceeding against the government because of this law. What do you do about such an absurd application? Should a judge consider what the legislature would obviously have wanted or what they said?

Or, there was another case, where there is an excise tax on vegetables. And of course, a problem arose: is a tomato a vegetable? How does one answer this? Dictionary? Dictionary at the time the law was written? Do we look to the way the word is used by the food industry that is being taxed? The way that it is used by the lawyers who likely drafted the language? By the way the word is used by ordinary people? By the way tomatoes are actually used by ordinary people (not as a sweet, or a dessert, but as a part of the meal), or by what a botanist would say? These were all considered. And this was one of the easiest cases I saw all semester.
The problems get more complex. What if an agency is involved? What if they issue an opinion (and what process does that opinion’s issuance have to go through in order to be considered legitimate?). What authority does it have (it has a lot of authority, but there are a lot of exceptions). What about absurd applications. What about unclear meaning? What qualifies as unclear meaning? What about state’s rights, international law, the benefit of the doubt for criminals who couldn’t have predicted that the law would be interpreted in such a way? There are a whole host of what are called canons of construction that are applied to help sort through these matters. Some are “linguistic”. They all have fancy latin names that mean things like, “a think is known by its associates.” This means that if there is a list of items and one is more general (cars, trucks, buses and other vehicles), you limit the general term (vehicles) by its associates (cars, trucks, buses). So you might assume that vehicles doesn’t include boats or airplanes here. But what exactly it includes is unclear. Is it that all of the vehicles on the list belong on the road? Is it that they are licensed by the DMV? Is it that they have four or more wheels?

And for each fancy canon, there is a counter canon. There is a canon that says statutes should be read so that words are not construed superfluously. So, “vehicles,” if it only means the same thing as the words in the list already, might be a superfluous word. Since we want to interpret the statute so as to avoid this (assuming that the legislature wants to give meaning to all the words it passes, a hefty assumption), we might read vehicles more broadly, to include boats for instance.

One fun one is expressio unius, which basically means that a statutory statement excludes similar statements that are unwritten. So, “you may have tomato juice with breakfast,” does not mean “you may have Dr. Pepper with breakfast.” But does it mean you cannot have orange juice? It is hard to say… There is an opposite canon to make matters even more confusing.

Anyway, there are scores of these tricks that judges use to decipher the inordinately complex meaning of these statutes. Their complexity is only vastly expanded when the particulars of uncontemplated situations (like mail carriers getting arrested) get thrown into the mix.

By the end of the class, you start to wonder if statutory interpretation is just sophistry, an intellectual trick in order to bring about whatever result you desire. Certainly desire and intuition play a role in the judicial process, but these are greatly constrained by the plausible meanings of the text and by appellate review.

But, still, as the class wound to a close, most of us felt rather lost. I knew the canons and could apply them, but it was unclear in which order. Do you look at what the enacting legislature seemed to want? Do you look at legislative history (committee minutes, floor statements, presidential signing statements, statements by the sponsor of the bill, the supporters of the bill, the opponents of the bill, or the moderates who sign on at the last second…)? Do you look only a text? Do you try to look at purpose at all? What does any of that even mean?

It’s rather maddening (if you know me well, you now know why I loved this class). Sometimes I felt like professor Elhauge wasn’t just using the Socratic teaching method (which he did quite well, actually); rather I felt like he was Socrates. I’ve never seen someone move from one stance to another (in order to challenge students thinking) so effortlessly. At the end of the course, I felt like I had no idea what I thought, but that the picking apart what I do think had been quite a fun exercise.

Fortunately, my professor wrote the book on statutory interpretation. He is one of the most brilliant people I’ve met, and his specialty actually lies elsewhere (anti-trust law). But he still managed to step into statutory interpretation and come up with the most elegant, brilliant, predictive theory we came across. And he barely mentioned it (the theory) in class. He just said we needed to read his book as a way to review for finals.

His theory not only gave meaning to the canons and a made an excellent case for how to prioritize them, it also predicted the often seemingly contractory rulings that have come out of the US Supreme Court. And, while some might call Professor Elhauge a romantic (rather than a cynic, as most of us are, about the politics of the Supreme Court), his theory has real merit. And not just because he worked there as a clerk (of course he did). What I found so enjoyable about it is that is took a thousand years of judicial history and what has come of it (common law statutory interpretation) and the sort of interpretive bacchanal that it appears to be, and smoothed it out into one basic, elegant theory.

I’d explain it here, but it would be virtually meaningless (if the above hasn’t been already) if you haven’t studied the problems of statutory interpretation. This sounds very lawyerly, doesn’t it? Professor Elhauge is brilliant because he solves this intractable problem that hundreds of professors have failed for years to solve to elegantly, even though you didn’t know it was actually a problem.

1 comment:

RING said...

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