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 Page 1 of 9 Fagundes Course Syllabus StatReg Spring 2016 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. Page 2 of 9 Fagundes Course Syllabus StatReg Spring 2016 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. Page 3 of 9 Fagundes Course Syllabus StatReg Spring 2016 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 Page 4 of 9 Fagundes Course Syllabus StatReg Spring 2016 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. Page 5 of 9 Fagundes Course Syllabus StatReg Spring 2016 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 Page 6 of 9 Fagundes Course Syllabus StatReg Spring 2016 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) Page 7 of 9 Fagundes Course Syllabus StatReg Spring 2016 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 Page 8 of 9 Fagundes Course Syllabus V. StatReg Spring 2016 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) Page 9 of 9