STATUTORY INTERPRETATION & REGULATION
Syllabus—Spring 2016
Professor:
Office:
Phone:
Email:
Twitter:
Dave Fagundes
Teaching Unit II, Room 226
713.743.1431
dfagunde@central.uh.edu
@DFclasses
Course overview
This course addresses two foundational questions: What processes give rise to law? And
what does written law mean? These are questions of enormous practical significance. While the
first-year law curriculum focuses primarily on common-law doctrines extracted from judicial
opinions, lawyers today spend far more time dealing with statutes (i.e., laws enacted by
legislatures) and regulations (i.e., laws promulgated by administrative decisions). And because
laws are often, in Justice Ginsburg’s phrasing, “ambiguous or obscure,” the application of these
statutes requires lawyers to deploy a range of techniques designed to resolve competing
interpretations of both statutes and regulations.
This course will explore the legislative and administrative processes that generate statutes
and regulations, the theories and doctrines of statutory interpretation used in federal and state
courts, and the methods of challenging agency action.
Class meetings
We will meet Mondays and Wednesdays from 9-10.20am in TU II-211.
Required text
The text for this course is Eskridge, Gluck & Nourse, Statutes, Regulation, and
Interpretation: Legislation and Administration in the Republic of Statutes (2014). Please feel free
to purchase any used copies of this book you find online, or via the exchange I created with
UHLC students who are interested in selling their used copies.
All page numbers in the syllabus refer to this text, and are indicated as “EGN”. Any other
readings not included in the EGN book will be made available on TWEN.
Class discussion
The structure of class sessions will be dialogic (though not strictly Socratic), and your
participation in the discussion is both required and encouraged. Students should carefully prepare
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the assigned materials, including cases, case notes, statutory sections, and problem sets. I will
call on students at random, though I will call only on students in the first half of the alphabet (AM) on Mondays, and the second half of the alphabet (N-Z) on Wednesdays. If you are
unprepared when called on, I will mark you absent, and will hold you responsible for substantial
class participation the subsequent day. More than one instance of unpreparedness will result in a
reduction of your course grade.
I understand that you will not always be able to prepare completely for class. If you are
not able to prepare for class on a particular day, you can avoid being called on by notifying me
by email or otherwise prior to the start of class (this includes, for example, simply mentioning to
me just before class that you are unprepared and would like to take a pass). You can choose to
opt out of class participation a total of three times this semester. Please feel free to take these
passes for any reason, and you need not explain or justify the basis for your decision to take a
pass on a given day. Taking a free pass will not, of course, result in your being charged with an
absence.
Please take note that it is your responsibility to inform me ahead of class of your desire to
take one of these three free passes. If I don’t get reasonable notice of your desire to take a pass,
then you will be assessed as unprepared should I call on you. One suggestion: if you decide to
take a pass only a few minutes before class starts, please notify me in person rather than sending
me an email, since I likely will not be checking email shortly before class starts.
Problems
This course focuses substantially on the application of rules of statutory interpretation to
specific cases, as well as other hypothetical examples. Most of the problems we will work
through are found in the EGN text. In the syllabus, I will specifically indicate when you should
prepare the problems from the EGN text. If I do not indicate that a particular problem is
assigned, you need not prepare it, even if it is within the page span that we are reading. On the
other hand, if I do specifically indicate that a given problem is assigned, then you should
carefully prepare it, preferably by writing down your thought process and answer.
I will call on students to discuss the assigned problems, and expect students to be able to
both express an opinion about the right answer to the problem as well as to give a reason for their
answer. Students who are unprepared to discuss an assigned problem will be assessed as
unprepared.
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Attendance
Attendance is mandatory, and will be taken every class through distribution of an
attendance sheet. If you do not personally initial the sign-in sheet during or immediately after
class, you will be considered absent. This is true even if (as may well be the case) the attendance
sheet does not circulate to you during class, or if you simply forget to initial the sheet. I will
always have the attendance sheet at the podium after class for anyone who has not had a chance
to sign it.
UHLC’s Honor Code applies to initialing the attendance sheet. Students may initial only
their own names, not those of other students, and initialing the name of other students is
considered a violation of the Honor Code. Lack of preparation, early departure, late arrival, or
inappropriate behavior may result in your being marked absent.
UHLC strictly applies the ABA requirement that no student can receive credit for a class
from which they have been absent more than 20% of the time. If you are absent in excess of 20%
of our course meetings, I will refer the matter to the academic dean, which may result in
administrative withdrawal. Substantial absences accumulated short of the 20% threshold may
serve as a basis for grade reduction (see below). It is the responsibility of students to keep track
of their own absences.
Examination and grading
The grade for this course will be primarily determined by a three-hour, closed-book final
examination. The examination will consist of both an essay and a multiple choice portion, each
of which will be equally weighted in determining your examination grade.
I reserve the right to raise or lower a student’s letter grade by one-third (e.g., from a B to
a B+, or from a B to a B-) based on the student’s preparedness for class, engagement during
class, and quality participation in class discussions. This is a qualitative, not a quantitative
assessment. Merely participating frequently in class, and/or knowing answers to basic questions,
will not result in having your grade increased.
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Laptops and other electronic devices
I do not ban laptops in class, but I am concerned about the negative impact they can have
on learning and class atmosphere. If I call on you and you are obviously paying more attention to
the internet than to our class discussion, it may result in your being assessed as unprepared. And
if you find that a classmate’s use of their laptop is especially distracting, please feel free to let me
know about this concern.
Classes will be recorded as well as live-streamed, and the video recordings will be made
available online. Given the availability of this resource, I ask that you not record the classes
yourselves.
Office hours & open door policy
I hold office hours on Tuesdays from 1.30-3.30pm. During office hours, I will
presumptively be available to talk to any students who drop by on an informal basis. If any
student wants to reserve a specific fifteen-minute block to meet with me during that time, email
me ahead of time and I will reserve that time to meet with that student exclusively.
I realize this time will not be free for all of you due to other conflicts. If you are unable to
meet during my office hours, I welcome office meetings outside normal office hours, and to set
one up simply email me and we’ll work out a mutually agreeable time. I can also schedule virtual
meetings either by phone or Skype, including on weekends if necessary. If you want to set up
one of the latter meetings, let me know and I will share my contact information with you once
we have set a time.
Finally, I also have an open door policy, so that if my door is open, you should feel free
to come on in to discuss issues related to class. If my door is closed, you can still knock to see if
I am around, but chances are that I’ll be unavailable. And as a general rule, I tend to be
unavailable in the several hours before any class I teach in order to do final preparation. You are
also most welcome ask me questions via email, Twitter, or post questions to the TWEN
discussion boards.
TWEN & Twitter
I will maintain a course TWEN page. It will host course documents (latest updated
syllabus, PowerPoint slides from class, problem sets) and provide two different forums to which
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you are all invited to post (“Procedural Issues” for topics related to course organization,
scheduling, and other administrative matters; and “Substantive Issues” for questions about
material covered in class, recent developments in the law, and any other aspects of statutory
interpretation or regulation itself). You are responsible for remaining up to date on any
information posted to TWEN, so be sure to check it frequently, and consider setting up email
alerts for new postings to the site.
I also maintain a course Twitter feed: @DFclasses. I use the feed to keep students up to
date on issues related to class administration (i.e., if there is a change to the reading assignment)
and substantive issues (i.e., passing along links and retweets relevant to property law). The feed
is public, so you need not be a Twitter user to access it. And I expect you to be aware of any
information posted to the feed, so I recommend bookmarking the URL
http://twitter.com/DFclasses to facilitate this. You are not required to follow me on Twitter, of
course, and my policy is not to follow any students.
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Course Topics and Reading
I.
Introduction to Statutes and the Regulatory State
Date
Topic
Reading
(Problems)
1.20
Basic principles of statutes and regulations
EGN 1-27
(Probs. 1, 3-4)
II.
The Legislative Process
Date
Topic
Reading
(Problems)
1.25
How the legislative process works
EGN 33-58
1.27
Theories of the legislative process
EGN 58-79
2.1
Delegation of authority & congressional control of delegation
EGN 83-106
III.
Approaches to Statutory Interpretation
Date
Topic
Reading
(Problems)
2.3
Legislative intent
EGN 299-318
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III.
Approaches to Statutory Interpretation (cont’d)
Date
Topic
Reading
(Problems)
2.8
Legislative purpose
EGN 318-48
(Prob. 4-1)
2.10
Textualism and the “plain meaning” approach
EGN 349-66
2.15
The “new textualism”
EGN 366-70,
386-409
(Prob. 4-3)
2.17
Pragmatism; statutory interpretation in state courts
EGN 409-35
IV.
Doctrines of Statutory Interpretation
Date
Topic
Reading
(Problems)
2.22
Textual canons: word meaning and grammar
EGN 447-64
2.24
Textual canons: the whole act rule
EGN 464-90
2.29
Substantive canons: the rule of lenity
EGN 490-512
(Prob. 5-2)
3.2
Substantive canons: the doctrine of constitutional avoidance
EGN 512-20;
Bond (TWEN)
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IV.
Doctrines of Statutory Interpretation (cont’d)
Date
Topic
Reading
(Problems)
3.7
Substantive canons—federalism canons
EGN 532-52
3.9
Harmonizing potentially conflicting statutes; the rule against implied
repeals
EGN 552-75
3.21
Legislative history as an interpretive aid
EGN 601-07,
630-49
3.23
Statutory interpretation in contemporary context
King (TWEN)
3.28
Drafting exercise
TWEN
V.
Implementation of Statutes by Agencies
Date
Topic
Reading
(Problems)
3.30
Agency rulemaking; presidential control of rulemaking via OMB
EGN 713-35
(Prob. 7-1)
4.4
Judicial review of agency policymaking (“arbitrary and capricious”
review)
EGN 735-61
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Implementation of Statutes by Agencies (cont’d)
Date
Topic
Reading
(Problems)
4.6
Agency adjudication—Due Process requirements
EGN 761-75
(Prob. 7-2)
4.11
Adjudication v. rulemaking; judicial review of adjudication
EGN 777-800
4.13
Less formal agency action; agency guidance documents
EGN 801-10,
838-43; Elgin
(TWEN)
4.18
Judicial deference to agency interpretations—Skidmore and Chevron
EGN 855-59;
860-70; 872-75
4.20
Judicial deference to agency interpretations—Chevron, cont’d
EGN 876-94
(Prob. 8-3)
4.25
The Mead doctrine (opting for Skidmore or Chevron deference)
EGN 894-912
(Prob. 8-4)
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