Outline for Legislation and Regulation – Part I Tools of Statutory
Interpretation
Prof. Brown – LegReg
** includes examples of how the rule applies so we can draw similarities w/ the fact pattern given
on exam**
** Use cannons to make a Purpovists or Textualist argument**
** A exams- connection between beg. Middle and end**
I.
Statutory Interpretation Theories: how courts analyze statutes/ apply rules of
statutory interpretation
A. Purposivism – Court endeavors to figure out what the purpose of the statute is and
interpret the statute consistent with its purpose and what legislature intended. Even
though you can consult things outside of the statute, you begin with the text. US v. Weber
(affirmative action based on race is permissible under CRA of 1964).
i.
Dynamic Statutory interpretation: statutes should be construed in new ways when
there are new circumstances. Female juror cases; Commonwealth v. Maxwell (PA)
where at the time of the statute only men were qualified electors who could vote.
After the 19th Amendment was passed giving women the right to vote, the statute
could be interpreted to include female voters to sit on a jury. See also Matter of
Jacob/Matter of Dana where adoption statute is stretched to include cohabitating
partners including same-sex partners due to legislators’ amendment of statute
showing intent to change who can adopt due to societal changes.
B. Textualism – Court focuses on the meaning of the statutory language by focusing
exclusively on the text. Caminetti (federal statute criminalized transportation of any
woman or girl for an immoral purpose. A man brought a woman from CA to NV to be his
mistress and concubine. The text of the statute was plain. He transported a woman for an
immoral purpose. The statute applied and he was convicted. US v. Madison Locke (Dec.
30 deadline was upheld because that was the date in the statute.)
i.
New Textualism/Scalia: judges must be constrained by and held to the
legislatively enacted statutory law. Plain meaning of a statute is that which an
ordinary speaker of the English language would draw from the statutory text.
Dictionaries can be consulted to provide context. Text should be construed
reasonably to contain all that it fairly means. Judges should almost never consult,
and never rely on the legislative history of a statute. Legislative history does not
all point in the same direction. There is something for everyone in legislative
history. Presumptions and canons are a lot of trouble. Appropriate to consult
legislative history to verify that legislature did not address this absurd result.
People v. Barnett (Ill) where the court found the words of the statute controlling
and are construed according to their common usage and did not apply dynamic
statutory interpretation and held because only men could vote and serve at the
time the statute was enacted, the 19th Amendment made no change; women still
cannot serve on juries.
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Canons
A. For every canon, there is a counter canon. But the canons are what lawyers who
practice in the area of statutory interpretation spend their time on. The canons are part
of “legisprudence.”
B. Textual Canons
1. Ordinary Meaning Canon: Interpreters will assume the legislature uses words in
their ordinary as opposed to technical sense. (Tomato is technically “fruit of the vine”
but is a vegetable in the ordinary meaning of the word vegetable.) Nix v. Hedden
2. Word Association Canons
i.
Noscitur a sociis: words are social creatures and travel in packs; words are
known from their associates. The canon assigns meaning to ambiguous words
or phrases in light of surrounding words. Section 5 of Holy Trinity sets out
exemptions: “nor shall the provisions of this act apply to professional actors,
artists, lecturers, or singers, nor to persons employed strictly as personal or
domestic servants.” Applying noscitur a sociis, by looking at the other
examples used with lecturers, you argue that these exceptions apply to
entertainers coming from abroad and does not include ministers. Smart
lawyer for the pastor can argue against noscitur argument that lecturers are
only intended to be entertainers by pointing to the inclusion of personal and
domestic servants to argue that the association of words in the list has no
single meaning.
ii.
Esjudem Generis: of the same type; used EITHER when there is a list of
specific words with a catch-all description at the end or a general word at the
beginning following by specific words. The canon tells us that the catch-all
description or general word is limited to the specific class of things listed.
Section 3 of the Park Safety Act says that a “vehicle” is “any mechanism for
conveying a person from one place to another, including motorcycles,
automobiles, trucks and motor scooters.” The general term “mechanism” is
followed by specific examples – “motorcycles, automobiles, trucks, and motor
scooters.” That means the general term is limited to the feature most
obviously common among the specific terms, namely motorization. On the
other hand, the feature most obviously common could be that they all pose
safety dangers to park users. Nonmotorized bicycles might then be included in
the term “mechanism.” Not every list has commonality.
3. Canons of Negative Implication: Expressio (inclusion) unius canon: presumes that
when specific things are expressly included in statute, it suggests the legislature
intended to expressly exclude other things. Section 2 of Park Safety Act: “Provided
that, bicycles shall be allowed in the park, so long as they are being pushed or carried
and not ridden.” By providing a special rule for bicycles, the argument is the City
Council excluded tricycles from the statute.
4. Grammar and Punctuation Canons
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Punctuation: looks at punctuation in the statute to aid in statutory
construction. This canon has not played a major role in Supreme Court
caselaw.
ii. Canon of the last antecedent: a proviso only applies to the provision, clause,
or word immediately preceding it. Pauline Thomas was an elevator operator
until that job was eliminated from the economy and she applied for disability
claiming she could not do other jobs in the economy. The statute said:
“physical or mental impairment … are of such severity that he is not only
unable to do his previous work but cannot…engage in any other kind of
substantial gainful work which exists in the national economy.” (Emphasis
added) The agency argued that as long as she could still do her “previous
work” she was not disabled. The 3rd Cir rejected agency interpretation and
reasoned that “previous work” like “any other kind of substantial gainful
work” had to exist “in the national economy.” The S. Ct. reversed the 3rd Cir
under this canon. The “other kind” of work – not previous work – had to exist
in the national economy. Barnhart v. Thomas
And /Or canon: and means all; or means either
May/Shall canon: May is permissive; shall is required
Singular/Plural canon: Singular includes plural and plural includes singular unless
the context indicates otherwise.
The rule against absurdity Canon: Assumes that the legislature does not intend
irrational or incoherent directives, courts will read – or even rewrite – statutes to
avoid absurd results. In Holy Trinity, the Court thought it inconceivable that Congress
in 1885 would have intended to exclude Christian ministers from this country.
Therefore even though statute may have technically applied to ministers: Section 5
excluded: professional actors, artists, lecturers, singers, and domestic servants, the
Court found that an absurd result. Interpreted the statute to exclude ministers and
found purpose was to prevent influx of unskilled labor. In Green v. Bock Laundry the
court determined that a literal application of the statute would distinguish between
civil plaintiffs and defendants without any reason and the literal reading would
probably have been unconstitutional. Interpreted the text to apply only to criminal
defendants. (J. Scalia concurring in judgment.)
Whole Act Rule: presumes that Congress uses terms consistently, intends each
provision to add something, and does not want one provision to be applied in ways
that undercut other provisions.
i.
5.
6.
7.
8.
9.
i.
ii.
Titles are part of the statute. They cannot overturn the plain words of the
statute, but in case of an ambiguity, the court may consider the title to resolve
uncertainty. ( evidence of the purpose of act) in Caminetti, (p. 313) where the
court refused to consider the title to the Act: The White Slave Traffic Act. If
they had, Caminetti likely would have had his conviction overturned.
Preambles and purpose clauses. In the case of ambiguity, preamble may be a
valuable source of insight.
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iii.
Structure of the statute canon: not only does each provision play a role, but
the role played by each provision helps us see more precisely what role to
assign to the ambiguous provision.
iv.
Provisos – because they are exceptions to the general rule, classic provisos are
to be narrowly construed.
v.
The rule to avoid redundancy/rule against surplusage. The presumption is
that every word and phrase adds something to the text. Each statutory term
adds something and should not be read out of the statute. Related canon: rule
against interpreting a provision in derogation of other provisions. One
provision of a statute should not be interpreted in such a way as to nullify
another provision. See argument in Gregory v. Ashcroft: Judges argued under
noscitur a sociis that the common thread between the three exceptions is
between “personal staff” and “immediate advisor.” That would make (2)
policy appointees unnecessary and violate the rule against
redundancy/surplusage since “personal staff” and “immediate advisor” seem
to cover most appointees who are in close working relationship with elected
officials.
vi.
Presumption of consistent usage and of meaningful variation. Courts
presume the same meaning is implied by the use of the same expression or
term in every part of the statute. Corollary: change of wording denotes a
change in meaning.
C. Substantive Canons
1. Canon of Constitutional Avoidance: presumption that Congress does not intend to
enact unconstitutional legislation. Green v. Bock Laundry. Courts will interpret
ambiguous potentially unconstitutional statutes in ways that avoid the constitutional
problem. Grounded in separation of powers: respect for Congressional work product
and judiciary should err on the side of saving statutes rather than striking them down.
i.
Classic avoidance canon: When the court decides that one interpretation of an
ambiguous statue is unconstitutional, it chooses another interpretation that is
constitutional. NFIB v. Sebelius the Court found the Affordable Care Act is
constitutional under Congressional taxing power after determining the ACA
was unconstitutional under the Commerce Clause. CJ Roberts issued an
advisory opinion on the Commerce Clause.
ii.
Modern avoidance canon: When one interpretation might raise serious
constitutional problems or doubts, choose a different interpretation that does
not. J. Ginsburg in Skilling. Skilling was convicted of “honest-services” wire
fraud and his conviction upheld by the 5th Circuit. Court reversed the
conviction because statute was interpreted to mean schemes to defraud only
applies where there have been bribes and kickbacks. By narrowly interpreting
the statute, Court avoided finding the statute unconstitutionally vague.
Concurrence would have stricken down the statute as unconstitutional because
vague. Avoids unnecessary constitutional holdings and advisory opinions by
the Court.
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2. Rule against advisory opinions: Presumption against deciding that which does not
need to be decided; presumption against issuing advisory opinions. Compare J.
Ginsburg approach in Skilling with CJ Roberts in Sebelius.
3. Deciding the case on statutory grounds instead of constitutional grounds where
possible.
4. Rule of lenity in criminal cases requires narrow interpretation in criminal cases.
Skilling by narrowly interpreting the statute applied the rule of lenity.
5. Federalism canons: The Supremacy Clause allows an otherwise constitutional
federal statute to displace or “preempt” state law that interferes with the operation of
the federal statute. In other words Congress can constitutionally overrule what States
are doing. The federalism canons provide that Congress has the ability to act, the only
issue is whether they intended to act in a way that displaces the State’s scheme.
Federalism canons are different from federalism questions. Federalism questions ask
whether Congress has the power to enact the statute at issue. The federalism canon
operates where Congress has the power to act, but asks the question did Congress
intend to act in a way that pre-empts the State.
i.
Presumption against federal preemption: There is a presumption against
federal preemption of traditional state regulatory regimes. Generally applies
when there is existing state law out there for the federal statute to displace.
This canon puts the burden on Congress to be clear when it intends to disrupt
the state regime. You could look outside of the statute for indications of
congressional intent.
ii.
Gregory Canon: Requires a clear statement in the statute, nowhere else, in
order for Congressional action to supersede a State’s statutory scheme. (Like
the presumption against federal preemption, but with different proof
mechanisms.) Gregory v. Ashcroft: Age discrimination in employment act
(ADEA) excludes elected officials and appointees on the policymaking level.
The Missouri state constitution provides mandatory retirement at 70 for most
state judges who are initially appointed, then elected. Court held Congress
needs to show clear intent of including state judges within provisions of
ADEA. There was no clear intent expressed in the statute, therefore ADEA
does not apply to Missouri state scheme. This is a textualist rule it is harder
for the other side to overcome this then it is to overcome the presumption
against preemption.
a. Compare Gregory Canon with Chisom v. Roemer (decided on the same day)
which applied the Voting Rights Act to state judicial elections without
anything like a clear statement that Congress intended them to be included in
the VRA. Chisom does not mention or apply Gregory canon. Even textualists
sometimes need a tie breaker. Here, the clear statement rule provides it. After
all the clear statement has to be in the text of the statute.
Extrinsic Canons: Those canons that help the court figure out what the statute means by looking
at sources outside of the text of the statute. Examples include: the common law, horizontal
coherence, legislative history, and agency interpretations.
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1. Horizontal coherence canon: decision is consistent with current statutory and
constitutional norms found outside of the statute at issue. Bob Jones University where
court found anti-discrimination norm required holding tax-exemption could not be
granted to a university discriminating on the basis of race.
2. Common law canon: statute that uses a common law term without defining it is
presumed to have the same common law meaning. Bob Jones University used the
common law definition of charitable to “amend” the Internal Revenue Code to
include a prohibition against race discrimination as being included in common law
meaning of charitable.
3. Legislative History: used by purposivists; NOT used by textualists. Exception for
textualists: Appropriate to consult legislative history to verify that legislature did not
address this absurd result: J. Scalia in Green v. Bock; or look at history of textual
amendments and in that instance you are only looking at the text of the statute.
i.
Legislative inaction/acquiescence: If Congress is aware of a court’s
interpretation and does nothing, then Congress is presumed to agree or have
acquiesced in the court’s interpretation. Bob Jones University: because
Congress was aware of the denial of tax-exempt status for racially
discriminatory schools (they held numerous hearings) when enacting other
and related legislation, that makes out a strong case of legislative
acquiescence in and ratification of IRS rulings.
ii.
Rejected proposal rule: If Congress tried to overturn the court’s decision, but
failed because the legislation was rejected, then the Court can presume
Congressional acquiescence.
iii.
Dog Doesn’t bark canon: If one party argues there is a big shift in the
legislation, but nothing in the legislative history shows any kind of reaction,
the kind you would expect if there had been a big shift, the “dog doesn’t bark”
canon says you do not interpret the legislation as if a big shift occurred.
Chisom v. Roemer the Court decided that because judges were included in the
Voting Rights Act prior to the 1982 amendments; nothing in legislative
history suggests Congress was making such a drastic change and now
eliminating them. If such a drastic change had been made, surely there would
be something in the legislative history acknowledging that.
4. Agency Interpretation canon: Court in Bob Jones University deferred to agency
interpretation forbidding issuing of tax-exemption if school discriminates on the basis
of race.
5. Stare decisis canon: Prior Supreme Court decisions are external to the statute but are
applied to aid in interpreting the statute. In Johnson v. Transportation Agency Court
found affirmative action was permissible under Title VII of the CRA for public
employees based on gender because of prior precedent of Bakke and Weber.
Exam Question on this might look like:
1. Statute w/ legislative history
2. Cause of action-> what happened in case
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3. Call of Q: You are the judge write a purpovists opinion. You are the clerk to a judge who is a textualist write a
textualist argument. You are a judge write an opinion (you pick textualist or purpovists) Write a draft opinion using
either approach or just write a draft opinion.
I am writing a purpovists opinion however there is a textualist argument I cant let go
4. Call of Q: You are representing client (argue both purpovists and textualists because you don’t know what type of
court you are walking in to)
*If terms are not defined all you can say is perhaps the dictionary would allow us to argue
Practice-> pull statutes from book and use Q’s above.
II.
How courts determine whether the agency has complied with the APA? The
agency has screwed up the process.
a. Agency actions are governed by the 1) APA (interpreted by case law), 2)
enabling statutes (additional directions w/ APA), and 3) Executive Orders
(requirements given by executive).
b. Administrative Law: How courts determine whether the agency has complied
with the APA. APA est. basic rules (governing doc.) for government agencies.
They must follow the APA when making, interpreting, or applying rules.
c. 3 branches of government
a. Legislative (Congress): enacts laws, tells agencies what they can
do (creates them)
APA 704: Final
b. Executive (president faithfully executes laws) agencies are part
agency rule
of this branch and help carry out laws, the heads are apt. by
making is subject
president
to judicial review
c. Judiciary (courts): interpret laws
( informal or
Agencies: given power by statutes political apt. are running it, but federal
formal)
employees who have protections from being fired (aren’t elected) work for them.
ii.
Agencies have the legislative power to issue rules and orders.
iii.
Formal: rule making on the record, detailed “trial like” procedure,
based on statute specific directives (disappeared after Florida East Coast
Railway and Alleghany- Ludlum)
iv.
Informal: (Notice and comment rule making)
a. Rules
a. Informal: (Notice and comment rule making):
interested parties must be on notice. Procedural rules for
informal notice and comment rule making are in APA 553
and court can expansively interpret these requirements
Agency can decide if they
(Yankee)
want to go through
 Agency provides advance notice of proposed rule in the
adjudication or rule making.
Federal register (553 b)
They must follow the policy
 Agencies allow interested parties an opportunity to
for which ever they chose.
comment (553 c)
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
All these cases tell us
how to do the APA for
informal rule making
What is notice
What is a concise
statement
Agency can disagree w/ comment but can’t ignore it (must
respond and review comments before issuing the final
rule). IF ignore it the court can find the agency action
“arbitrary and capricious”, and overturn action section 706
(2) (A). The agency must include an explanation of how the
final rule reflects or does not reflect significant substantive
comments. The final rule is a final action and is subject to
review.
 Under APA there is a provision for judicial review of final
agency rules/ orders and other actions UNLESS the statute
precludes judiciary review (can’t appeal it) or agency
cation is committed to agency discretion by law (court’s
opinion of action doesn’t matter
 Ex: Vermont Yankee: no additional req. agencies just must
satisfy 553, however the Supreme court can impose
additional procedural req.as they want by broadly
interpreting 553. Executive branch through executive
orders add agency req.
ii.
EO 12-866 is an additional procedural requirement imposed by the
Executive Branch for “significant regulatory actions”. Don’t need
OIRA cost benefit analysis if OIRA waives OIRA review or the action
is not significant regulatory action ex: maybe a waiver should have
been given for Prison reform
Steps:
1. Agency drafts proposed regulation in consultation w/ interested parties
2. Publishes proposed regulation on Federal Register asking for comments
3. Drafts final regulation and seek governmental approvals (OIRA) before agency action
takes effect
4. OIRA approves, government agency is free to publish, gov’t agency can chose to do or
not do what OIRA says-> goes up to President or VP to determine if OIRA was out of
line or if agency needs to comply
5. Agency publishes final regulation and has power of law at this point someone may be
harmed enough to be sued. Until final not law. We assume case has standing: proxy
for you care (right to sue).
6. Law suit determines whether the agency’s regulation will stand
7. Judges must use APA standard of review: arbitrary and capricious-> agency must
explain itself and include rationale connection between facts found and choices made.
Court must consider whether the decision was based on factors:
1. rely on factors congress did not want them to rely on
2. Agency entirely failed to consider important aspect of problem
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3. Offered an explanation for its decision that runs counter to the
evidence before the agency: Illegitimate reason so didn’t share or have
reason but didn’t share
**Court can’t add to record if they think of a reason for why the agency did what they did (can’t
make up a rational basis)
OIRA uses benefit cost analysis for significant regulatory actions this includes efficient
alternatives to rule, explain why the proposed action is necessary, identify and address market
failure, important non monetary values, regulation at the federal level is best way to solve
problem (each state will have own idea and each will work different. Each state is a labatory and
each will experiment we can collect data and see which is better) we don’t get this if jump to
state, once pick federal-> enforcement methods, requirements based on geography, firm size
etc.,
OIRA may waive cost benefit analysis requirement if they don’t think the planned action is
significant. OIRA may loose sight of purpose of rule if focused on cost benefit analysis.
Gives economists jobs at every agency that passes rules.
Ex: Problem 7-1 PREA: Executive order to eliminate Prison rape
Cost benefit analysis is hard to apply in noncommercial transactions: can’t measure harm of
sexual assault. Suggests that only if numbers come out a certain way is prison rape elimination a
good idea.
Final rule did not include taxonomy of harm that used economic analysis to categorize harms.
1.
2.
3.
D. Does the agency have the authority to regulate this particular subject or activity?
a. Congress must pass a statute and say what an agency can do.
i. Ex: Does the agency have the authority to regulate motorcycles
under the statute?
b. Is the agency rule arbitrary or capricious (crazy makes no sense)? If it fails to
satisfy requirements of §553
i. Does the rule ignore scientific evidence
ii. Does the rule make sense? Made for no reason?
iii. Does agency have authority to regulate?
iv. Must take into account all relevant factors: failure to notice=failure to refute= failure of agency to take into account relevant
factors b/c failed to receive info through objections.
1. No, goal is to provide safety in the park
c. Has the agency interpreted the statute correctly? (based on what the reviewing
judge thinks)
i. Statute says must be a grace period agency says effective
Issue draft w/
studies (need a
immediately.
record)
d. How much deference does the court give the agency’s interpretation?
Solicit comments
Address comment
and issue rule
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e. The agency’s action must be FINAL and §702 a person must suffer legal
harm as a result of agencies actions.
i. Ex: Novia Scotia: agency regulating the smoking of white fish.
Agency regulation was invalid b/c 1) Beyond authority to issue the
regulation 2) FDA relied upon scientific evidence but didn’t tell us
what is was so it couldn’t be refuted 3) No adequate statement of basis
for regulation: prevented person from having opportunity to complain
before rule came out. Can’t comment about what I don’t know you’re
thinking about doing. Notify party’s you are about to do something
that effects their interest. This case was before OIRA and cost benefit
analysis was a part of the process. Court rules the rule was arbitrary
and capricious, must do it over!
ii. Judges review the WHOLE record must consider what the agency
looked at when they issues the final rule.
1. No record! There were memories of those who participated
(obtained through pretrial discovery: to construct a record vs.
given a list of doc. Which they should have been able to do.)
2. Evidence the agency went rogue! Made regulation the agency
wanted and ignored comments.
iii. Notice and comment: must disclose what studies/data were relied
on (show your work), must reply to objections (acknowledge them)
1. Nobody knew if what the agency valued was correct
iv. Final rule must include a “Concise general Statement of basis
and purpose” APA §535: explanation of why agency is doing what
they are doing
1. Must tell basis for rule, agencies have discretion: tells court
what major issues of policy were thought of.
2. Did the agency decide public health should prevail and
understood it would put whitefish out of business? Okay as
long as the agency thought about it.
3. Agency had a right to say A general rule was ok but must say
why they didn’t keep the species by species analysis
v. Chocolate Milk Hypo
1. Chocolate manufacture: 1) didn’t present studies backing up
conclusion of deleting flavored milk (sugar content didn’t say
min or max just some sugar) 2) b/c. in initial rule said flavored
milk was okay (no notice based upon proposed rule that
banning chocolate milk was even a possibility) 3). Given
opportunity to comment on flavored or unflavored not
chocolate milk- New proposal requires new notice 4). How
could we abide by guidelines nutrition education principlesweren’t defined. 5) getting milk in kids!! Any milk is good
milk We win chocolate manufacturers had no notice that
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


chocolate milk could be banned!! Issue notice and solicit
comments for chocolate element. Never thought of banning
chocolate milk until received comments Must give
reasonable notice: that allows interested parties to
participate in comment process
2. USDA Agency: 1).535 says we have to give change to submit
comments we did that 2). Invited alternatives (chocolate was a
proposed alternative for rule in comments) 3). Proposed cereal
rule put chocolate co. on notice b/c chocolate is in cereal 4).
Congress ordered agency to regulate there is a directive in
place. 5). Comments no matter how few provided substantive
material!
E. Motor Vehicle Manufacturers Ass'n v State farm: §553 of APA requires an agency to
examine all alternatives especially in light of relevant data and make a rational
connection between the facts found and choices made. The court won’t add its
rationale to supplement the agency’s rationale. Advise clients to go with majority
need more of an explanation.
a. State farm v. NHTSA: insurance co wanted gov’t to put some teeth in
legislation. Circuit court says come back in 30 days to early to rescind act.
Insurance co. is acting as proxy of gov’t saying they should have done better.
b. Purpose: reduce traffic accidents, deaths, injuries to persons resulting from
traffic accidents. The act directs the sec. of state to consider certain standards.
1. Motor vehicle Data
2. Proposed standard is reasonable, practicable, and appropriate
for particular type of motor vehicle
3. Extent to which such standards will contribute to carrying out
purpose of act.
Judicial review is authorized under 706 of the APA “of all orders est., amending or
revoking a federal motor vehicle safety standard” -> says orders applies to rules.
Standard 208 required installation of seatbelts, but they weren’t used!
Dpt. authorized passive occupant restraint systems”-> don’t have to do anything to use
them.
1. Automatic seat belts
2. Airbags
Step 1: Car manufactures sued and lost the gov’t regulation won because was supported by
substantial evidence (previous legislation: purpose).
Step 2: Car man. Choose ignition interlock instead of automatic seat belts. Congress said no do
over and amended rule must submit alternatives to both houses to approve.
Step 3: Coleman suspended passive restraint req. and proposed a. demonstration project to let
more ppl get ok with idea.
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Step 4: Next secretary (replaced Coleman b/c change in Presidents rep-> Dem) Adams say no
project, instituted Standard 208 have to have 1 or 2. Cost more but ok b/c will live!-> car man
sue again, transportation wins again.
Step 5: (Dem-> Rep) Sec. Lewis: due to change in economics in auto industry ordered 1 year
delay to new standards in 208 and may rescind entire act. NHTSA issues final rule (notice 25)
rescinded the passive restraint requirement. Rationale: not able to find that the req. would
produce significant safety benefits b/c car man. Put seat belts instead of airbags (cheaper). Lap
belts didn’t do anything b/c ppl didn’t use but were in 99% of new cars ( Let’s keep it real they
won’t use them ( take affirmative step) so they won’t do anything). Don’t want to require
unnecessary costs
Held: Agency’s rescission was arbitrary and capricious did not consider requiring air bag
technology (if did consider didn’t explain). Determined that ppl will detach mechanism (if were
lazy and won’t use lap belts we won’t detach automatic).
Dissent: Not arbitrary and capriccios b/c agency explained its actions b/c satisfied w/ detachable belts
it chose not to rely on study that found that seatbelt usage increased when lock mechanism didn’t allow
car to move until on. May not predict what avg. consumer would do.
Comes w/ change in political party in election-> more worried about consumer happiness vote in
President, vote in their agenda.
Alternatives: No rule requiring air bags. Could have amended rule for it. (require it: most consistent w/ facts) or not requiring it
because (nothing in congressional act that says cost overrides safety.) give explanation for why rejected non detachable seat belts.
(dissent says explanation was sufficient).
Agency adjudication
requires parties to be
put on notice due to
due process
Constitutional concern
not APA
2. Agencies have the power of Adjudication
a. Applying general principles of law to a particular
factual circumstance. And a order or tariff is the result.
a.Benefit over rule making:
1. case by case basis: allowing adjudicators
to learn from cases as society changes
decision makers change
2. file trial and error w/ feedback case by
case allows thoughtful decision making
3. agency more flexibility to adapt policy
to changing circumstances
4. apply retroactively
5. no OIRA review and can skip EO 12866
b. Golden Globe ( decisions between parties) FCC
enforce statute that broadcast media not carry obscene
indecent, and profane utterances. PTC brings claim
asking them to enforce violation of statute for use of F word.
Precedent says one word not enough. New rule says F word
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always has sexual connotation-> guilty but won’t fine b/c no
notice.
c. Alternatives for FCC: gov’t agency could issue a
guidance. (informal) to notify of policy not subject to
judicial review: create a sliding scale of penalties for
number of usages (not retroactive) or go through notice
or comment of new rule for 1 time usage of words.
F. Cases meaning
a. Novia Scotia:
1. Rule making record must be adequate for review,
2. APA requires a concise statement for explaining the agency’s
reasoning
3. Interested parties have a right to see scientific material that is
the basis of the agency’s rulemaking
4. If an agency has not taken into account all relevant factors it is
arbitrary and capricious
b. Chocolate manufacturers
i. Where final rule strays too far from the proposed rule, such that parties
did not have adequate notice, rule may be set aside and agency ordered
to reopen notice and comment period.
c. Prison Rape Reform: OIRA can be waived in informal rule making where
cost benefit analysis is not proper
d. Vermont Yankee: no additional req. agencies just must satisfy 553, however
the Supreme court can impose additional procedural req.as they want by
broadly interpreting 553. Executive branch through executive orders add
agency req.
e. Golden Globe: Orders do not apply retroactively b/c no notice is given.
f. Agency actions are arbitrary and capricious when:
1. (Novia Scotia) agency has not taken into account all relevant
factors
2. (State farm) The agency has relied on factors which Congress
has not intended it to consider; Entirely failed to consider an
important aspect of the problem; Offered an explanation for its
decision that runs counter to the evidence before the agency; or
Is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.
3. (State farm) Agency rulemaking can be arbitrary and
capricious where the agency does not examine all alternatives
or fails to make “a rational connection between the facts found
and the choice [s] made.”
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F. §706-Reviewing court shall decide all relevant Q of Law (de novo review): interpret
constitutional and statutory provisions and determine the meaning of the applicability of terms of
an agency’s action.
a. Review court sets aside agency findings if they are
1. arbitrary and capricious (rules: if agency follows procedure what they do is
binding)
2. adjudication: agency decisions on the merits unsupported by substantial
evidence
3. Guidance: Interpretive rules-general statements of policy or rules of agency
organization, procedure, or practice (found illogical- not persuasive/
unreasonable: judges substitute their JMT for the agency’s)
§553 rule making: no notice and comment or adjudication requirements for the following
UNLESS the statute says so:
a.General guidance: Interpretive rule to
interpretive rules, general statements of policy,
or rules of agency organization, procedure, or
practice; [guidance]
** held to lower standard and easier for court to ignore what you have done in exchange for ease
of entering guidance.
** While Legislative rules; and orders resulting from agency adjudications have the force and effect
of law. They affect legal rights and are immediately enforceable. Guidance’s do not have the
force of law (generally)




Not subject to notice and comment
Must be separately stated and currently published in the Federal Register for the guidance of
the public.Ӥ552(a)(1)(D)
Easier to issue guidance to give further clarification on a statue then issue new rule
Allows agency to issue opinion when it is outside of their preview (allowed actions by
Congress).
o Ex: The most the EEOC can do in Title VII cases is to issue policy statements and
guidance documents with the threat of litigation.
If guidance has Legal effect it is subject to judicial review (reviewable by a court). Guidance
has legal effect when:
1. In the absence of the rule, no legislative basis would exist for an
enforcement action;
2. the agency has published the rule in the Code of Federal Regulations;”
Mitchell- Brown Fall 2018
3. the agency “explicitly invoked its general legislative authority to pass
the rule;” (Agency says I have the authority to pass this rule so I’m
passing it) or
4. the rule effectively amends a prior legislative rule.” (Give notice
changing policy)
b. When does the court defer to the agency’s interpretation? How does the
court evaluate what the agency did? The agency actions were properly done
so can’t argue APA. Looking for another argument so the court will overturn
agency interpretation. No ambiguity and agency got it wrong (interpreted
differently than how congress did) doesn’t matter if agency procedure was
correct or ambiguity and agency interpretation was unreasonable.
Exam:
IS the material subject to
review?
Is it subject to skid more
deference? (Persuasive based
on evidence)
i. Pg. 842 Skidmore: No statute provision telling us how much deference to give
agency interpretation. Guidance’s are not reached through an adversarial
process. (never allow sides to duke it out!) Agencies don’t tell themselves they
are wrong when they are talking to themselves (only considered their narrow
world view). Administer of agencies have experience of repetition they make
decisions based upon specialized experiences and do broader investigations/
information. (know more than the judge b/c courts get all types of cases don’t
build an expertise). guidance’s are NOT controlling but b/c they are presumed
to know what they are doing Courts look for a proxy for adversairlness how did
they get different viewpoints how thorough did they consider alternatives
(looking for power to persuade). guidance have “weak deference”. If it is
persuasive that agency interpretation was the best answer take the guidance
into account do what it says.
ii. Multiple choice review:
1. Interpretive rules that have force and effect of law are subject to judicial
review. Generally, they are not subject to judicial review b/c they do not
have the force of law.
2. Agency rule making is always subject to the APA. They have adjudication
or rule making authority depending on what Congress gives them.
Adjudication is subject to the APA.
Judicial Deference to Agency Statutory interpretation: Judicial review: How do court’s review an
agency’s interpretation of the statute the agency is charged with administering?
1.
Outline answer (45- 1 hour)
a.
Context: final agency
action means it is
subject to judicial
review. Statute also
gives authority for
judicial review
b. Issue: Whether the
court will uphold the
final rule
c.
Standard: Arbitrary and
capricious 706 (2) (A)
d. Arguments:
i.
Inadequate
notice (address
your side and
MitchellBrown Fall
government)
ii.
No concise
statement
iii. Study not made
public
b. How does the Court consider the agency’s interpretation of their own
statue? How much deference is given?
c. Should agency use leg. history or cannons to interpret the statute the
agency is Charged with administering?
d. Once Agency clears the APA hurdle the court reviews how the agency
interpreted the statute.
e. Q is what the court thinks of the agency’s interpretation no longer what
court thinks of the statutory text.
2018
v. (applies to guidance’s) Skidmore: The firefighters asserted the time they spend
in the company building after hours should count as work time, which would
entitle them to overtime under the Fair Labor Standards Act (FLSA). Court
concluded these agency views were entitled to “respect” and “constitute a body
of experience and informed judgment to which courts and litigants may properly
resort for guidance.”
a. stands for the proposition that the court is the one making the
interpretation of the statute. The agency can weigh in if satisfies:
i. Thoroughness of consideration
ii. Validity of its reasoning
iii.
Is it consistent with earlier and later
pronouncements
iv.
All other factors given power that might
persuade
**If it doesn’t satisfy court will ignore agency’s
interpretation. (punishes agency for changing its mind)

Skidmore establishes power to persuade standard and
makes the courts the ultimate decider to determine how the
statute should be interpreted by deciding how much weight to
give the agency interpretation. If the agency’s interpretation is
persuasive then give the agency interpretation Weak deference
(only given power to persuade).
Exam tips:
1.Use rule numbers
2.Give a lot of context -> give her history back in
the beginning need an intro and conclusion using
cases (say in conclusion)
3.Arbitrary and capricious will be referred to as A
and C no agency names just say Agency
4. Say Call of Question did not ask for X, x would
either help or hurt client if considered.

5. Consider policy argument on both sides
6. Look for age of agency to make argument for
side of government: Statue creates agency
meaning agency is new reasonably expected to
rely on experts in best interest of public,
statement is enough because gives reasoning
(dissent in Chocolate), Has power to decide best
interest of public and what rules will fulfill
statute (manufacturer) congressional order: did
it call for swiftness?
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Apply when the agencys interpretation merit some deference
whatever its form may be given the speacialized experience and
broader investigations and information” available to the agency
-Mead.

b. Ex: General Electric Co. V. Gilbert: General electric excluded
pregnant women from disability plan. Women tried to use
regulation issued by the EEOC supporting their view that it was
a violation of title VII of the Civil rights act. Court said no cant
used b/c not written until 8 years later.
Majority (employer): not persuasive b/c the EEOC ‘s view changed
over time, it is inconsistent with earlier pronouncements. Although
legislative history is unclear it does not state congress acted
contrary to the EEOC’s prior interpretations allowing me to argue
that congress did not over turn the previous long standing policy.
Furthermore, the 1972 interpretation is recent, the public has not
yet relied on it b/c there has been no long standing application.
Dissent ( women employees): The agency should be given
deference b/c took time to study and gather information. It is the
agency’s job to develop expertise. They know more about it than
judges. EEOC’s new interpretation is more constant with the overall
purpose of the civil right’s act. This is unchartered territory takes
time to develop. Did not want to unfairly punish employers with
costs.
Non formal Rule making/ adjudication Chevron USA v. NRDC: Clean air act is the statute the EPA
administers. Congress opposed additional requirements when they “modified a major stationary source”
for states not meeting clear air standards. Q: Does Each individual piece of equipment or the entire
facility counted as a single source? The bubble concept means everything in side a facility is in 1 bubble
and = 1 thing. The additional req. Don’t apply if the overall emissions of the place don’t change (ok if one
machine goes up if another goes down). Co. measured the total pollutants emitted for all smoke stacks
rather than each. (could avg out (offset one stack w/ another). EPA indicated it would not use this
concept but after using notice and comment rule making procedure they adopted the bubble concept.
The NRDC said agency didn’t interpret the statute consistent w/ the amendments.
Q: how much deference should be given to EPA’s interpretation of the Clean Air act’s amendment’s
adopting the bubble concept. EPA was upheld b/c the term “major stationary source” was ambiguous,
and their interpretation was reasonable.
“Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.” Examining the legislative history, it found that Congress sought to
balance the “economic interest in permitting capital improvements” with the “environmental interest in
improving air quality.” Court found the Administrator’s interpretation to be a reasonable
accommodation of the competing interests and entitled to deference. Court ok w/ interpretation b/c
had to get through APA (meaning responded to comments). Court was not troubled that agency
changed its mind b/c they explained why it changed its mind. Explanation provide satisfied the court.
New elections lead to new ways of doing things (its ok for new political parties to change as long as do it
right). Court gives power to agency and defers to it as long as it is reasonable b/c “Judges are not experts
in the field, and are not part of either political branch of the Government.” While courts may sometimes
be required to “reconcile competing political interests,” they must do so “not on the basis of the judge’s
personal policy preferences. Judges aren’t experts on the act but Agency is! Agency can rely on
administration’s political views b/c they political appointees where elected ( ppl had a voice). Agencies
report up the line to the executive (President)
Chevron applies when the 1). regulatory scheme is technical and complex 2) the agency considered the matter is
a detailed and reasoned fashion and the 3) decision involves reconciling conflicting policies Ex: notice and rule
making. When these 3 things are not present Skidmore applies and agencies are given weak deference
(persuasive).
Chevron 2 step approach:
Step 1: Determine if the statutory language is ambiguous (statutory interpretation cannons) or if the statute is
silent and the question at issue was unaddressed by Congress? If the intent of congress is clear the court and the
agency must give effect to the unambiguous expressed intent of congress. Step one satisfied (no ambiguity) no
need to go to step 2. If agency acted consistently with plain meaning of statute-> agency action upheld. If the
statute is clear you do what the statute says ( statute directly address the issue).
Court says I know what the statute says it says x if agency did x agency wins.
Court says I know what the statute says it says x and agency does y. Agency looses.
Mitchell- Brown Fall 2018
If text is clear no deference to agency interpretation. Textualists tend to find the text is clear and inappropriate to
defer to the agency interpretation.
Purpovists tend to find that text is ambiguous and tend to go to step 2 and determine if the agency’s interpretation
is reasonable.
If there is ambiguity in the statute or Congress hasn’t addressed the issue the court does not impose its own
interpretation it considers the agency interpretation.
Step 2: Is the agency’s view reasonable or permissible? (Doesn’t matter if the court agrees with it)
Yes- Court will defer to the agency interpretation even if court would have made a different one. This standard
essentially = arbitrations and capricious. The agency must do something outrageous for the court to not defer to
agency interpretation. (agency is entitled to deference where the regulatory scheme is technical and complex
(clean air act) the agency considered the matter is a detailed and reasoned fashion (rule making) and the
decision involves reconciling conflicting policies.
If the statute does not directly address an issue, or there is an ambiguity, then Congress is deemed to have
delegated the power to make law in that area to the agency. The agency will resolve the question by
considering the competing policy choices and interests.
The reviewing court gives effect to that
agency’s “legislative” judgment, assuming
that “legislative” judgment is reasonable –
i.e. within the range of possible alternative
interpretations of its delegated authority.
Apply Chevron to guidance w/ force and effect of law. We know that chevron applies if it
satisfies the regulatory scheme is technical and complex; the agency considered the matter in a
detailed and reasoned fashion; and the decision involves reconciling conflicting policies.
Step 1: What process did the agency use? Is this a rule, guidance, or
adjudication? Did the agency follow the corrects procedures for which ever
they chose?
Yes- go to step 2
No- make APA requirement argument case should be brought under that
Step 2: What level of review the court will make?
Chevron strong deference: is used for rules or guidance w/ force of law
1. Was there ambiguity?
a. Yes, go to step 2
b. No. Was the agency action consistent w/ clear intent of
congress?
i. No done agency looses no step 2 of congress
ii. Yes agency interpretation consistent with intent of
Mitchell- Browncongress
Fall 2018it is upheld.
Skidmore weak deference (only power to persuade): guidance w/o force of
law.
Mayo v. US : is a step two decision. The court found ambiguity in the word student.
Facts: FICA defines “employment” as “any service ... performed...by an employee for the person
employing him,” but excludes from taxation any “service performed in the employ of ... a school,
college, or university... if such service is performed by a studentwho is enrolled and regularly attending
classes at [the school]. For medical residents, hours worked in the hospitals constitute an integral part of
their training, even though they were paid wages for working as medical residents. The issue was
whether those wages were subject to FICA [social security] withholding. [Employer part; employee part.]
Until 2004, the Treasury Department applied a case-by-case approach and general applied the student
exception to those who work for their schools “as incident to and for the purpose of pursuing a course
of study.” Medical students didn’t have SS withheld. In 2004, the Treasury Department proposed an
amended rule for comment and held a public hearing. On 12/21/2004, the Department adopted an
amended rule any employee working 40 hours or more per week could not be considered a student for
purposes of the exemption and had to have SS withheld. The rule specifically referenced medical
residents as employees, not students, under the Department’s interpretation. That meant the medical
students (and their employer) would have to contribute to social security through FICA.
Issue: whether medical “residents” are “students” for purposes of FICA withholding exceptions.
SC applied chevron
Step 1 (agency killer): Has Congress “directly addressed the precise question at issue.”16No. The statute
does not define the term student and does not answer the question whether medical residents are
subject to FICA.
Court used traditional tools to determine whether there was ambiguity ( dictionary definitions/
structure of statute/ practical Questions)
They then moved to step 2: agencies will usually win if get here b/c if not would have had an APA
challenge.
What was the agency action?
Notice and comment: proposed rule followed by public hearing
The agency is entitled to deference where: the regulatory scheme is technical and complex [Internal
Revenue Code]; the agency considered the matter in a detailed and reasoned fashion [notice and public
hearing]; and the decision involves reconciling conflicting policies [conflict between withholding taxes of
workers and not penalizing students].
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Agency interpretation is a “reasonable” one. Focusing on the hours worked and the hours spent
studying is a sensible approach. Agency determined rule would “improve administrability” thereby
avoiding wasteful litigation and continuing uncertainty of the case-by-case approach.
MCI
This is a step 1 decision: there was no ambiguity b/c the statute was clear and the agency has acted
inconsistent w/ the statute.
Issue: Whether the FCC’s decision to make tariff filing optional for certain carriers can be characterized
as a decision to “modify” a Section 203 requirement.
Held: FCC’s decision is invalid exercise of its authority. [Chevron Step One]
Analysis: Relies on the ordinary meaning of “modify” as defined in dictionaries: “a small incremental
change rather than a major or fundamental change.” [The war of the dictionaries.]
Analysis: The structure of the statute provides guidance. – The only exception to the Commissions
§203(b)(2) modification authority is: “except that the commission may not require the notice period
specified in paragraph (1) to be more than one hundred and twenty days.
Analysis: Is what occurred here a mere “modification?” No. Eliminating a crucial provision of the statute
for 40% of a major sector of the industry is too extensive to be considered a “modification.”
Analysis: We have a fundamental revision of the statute, changing it to a rate regulation only where
effective competition does not exist. That was not the idea Congress enacted into law in 1934
Dissent: The Commission’s detariffing orders were within its power to “modify any requirement” of
§203. Any requirement includes what Commission did here. Purpose is to contrain monopoly power.
The agency’s decision was rationale and was in line w/ main purpose. The Commission’s reading cannot
be termed unreasonable. The use of discretion expressly conferred by §203(b)(2) reflects “a reasonable
accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is
technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the
decision involves reconciling conflicting policies.” Chevron
Court is taking back authority it gave agencies. Some questions are so big the courts are saying that
congress didn’t intend for the agencies to answer them ( major questions). Majority is saying when
congress wrote modified they did not mean to allow agency to rewrite the statute. Congress does not
intend to give big-ticket questions to agencies, and courts shouldn’t assume such unless the text of
the statute clearly delegates that authority.
-Argument about what tools can be used in step 1 (textualists- only text) purpovists ( all tools).
How you define the issue impacts your analysis of ambiguity
Mitchell- Brown Fall 2018
1. What part of the statute is ambiguous?
2. Is it ambiguous?
Unit 3: Process is fine, challengers only hope is the agency went beyond their statutory directive. Defer
to agency interpretation as long as it is one of several reasonably interpretations.
Unit 1: the court determined what was reasonable under the statute
Babbitt v. Sweet Home
Majority is a purposovist opinion and the dissent is a textualist opinion (only reference leg. history in
response to majority). The court found no clear congressional intent and the agency acted reasonably.
Facts: Secretary of EPA promulgated a
regulation defining the statute’s
prohibition on takings to include
“significant habitat modification or
degradation where it actually kills or
injures wildlife.”
Issue: Whether the Secretary exceeded his authority under the Endangered Species Act by promulgating
the regulation.
Held: The Secretary did not exceed his authority when promulgating the regulation.
Method of Analysis: p. 478 “our conclusions that Congress did not unambiguously manifest its intent to
adopt respondents’ view... [Step One] congress did not clearly say agency can not do what it did.
... and the Secretary’s interpretation is reasonable suffice to decide this case.” [Step Two]
Ordinary meaning canon: dictionary definition of harm is “to cause hurt or damage to: injure.” Webster.
In the context of the ESA, that definition includes habitat modification that results in actual injury or
death to endangered or threatened species.


Respondents argue that the Secretary should have limited “harm” to direct applications of force
against protected species, but the dictionary definition does not include “directly” or suggest
only direct action constitutes “harm.”
Worried about endangered animals!! There is no objective analysis of the cannons everyone
argues w/ views of what congress meant in mind ( Bio diversity)
Rule against surplusage canon: Moreover, unless the statutory term “harm” encompasses indirect as
well as direct injuries, the word has no meaning that does not duplicate the meaning of other words
that §3 uses to define “take.” Interpret an act so all parts have a meaning. Dissent focuses on the word
taking no harm w/o taking.
Legislative purpose canon: The broad purpose of the ESA supports the agency’s extending protection
against activities that cause the precise harms Congress enacted the statute to avoid. Could also be rule
against absurdity.
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Stare decisis/precedent canon: In Hill, we construed §7 as precluding completion of the Tellico Dam
because of its predicted impact on the survival of the snail darter. “The plain intent of Congress in
enacting this statute, was to halt and reverse the trend toward species extinction, whatever the cost.
Dict b/c specific issue not at issue here but if we interpret broadly in one place we need to interpret
broadly here too.
Whole act rule canon: §10 allows Secretary to issue permits to allow incidental takings. Congress’
addition of the §10 permit provision supports the Secretary’s conclusion that activities not intended to
harm an endangered, such as habitat modification, may constitute unlawful takings under the ESA
unless the Secretary permits them.
Agency interpretation canon: The latitude the ESA gives the Secretary in enforcing the statute,
together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe
some degree of deference to the Secretary’s reasonable interpretation. Saw this in Bob Jones
Legislative history canon: Our conclusion that the Secretary’s definition of “harm” rests on a permissible
construction of the ESA gains further support from the legislative history of the statute. Congress
intended “take” to apply broadly to cover indirect as well as purposeful actions. Both the Senate Report
and the House Conference Report included as a model the example of a development project that
threatened incidental harm to an endangered butterfly by modification of its habitat. The habitat
protection of S. 1983 made adverse habitat modification a categorical violation of the “take prohibition
– unlike the current regulation that only applies to those habitat modifications that actually kill or injure
wildlife. Majority says history was way more broad then what sec. did I’m not gonna get into why it
actually didn’t get passed that way.
Which is most correct about dissent in Babbitt:
A. The court finds clear congressional intent and agency interpretation was incorrect. (Step One)
B. The court finds clear congressional intent and agency acted unreasonably. (Step Two)
Dissent: p. 486 “the 1982 permit provision does not support the regulation. The neutral language of the
amendment cannot possibly alter that interpretation, nor can its legislative history be summoned forth
to contradict, rather than clarify, what is in its totality an unambiguous statutory text.” (Emphasis
added)
Textualists are more likely to find no ambiguity and hold against the ambiguity.
Dissent: Horizontal coherence canon; common law canon: Ordinary meaning of “take” as found in the
dictionary is supported by the definition of “take” as a term of art found in statutory law and the
common law. Take “describes a class of acts (not omissions) done directly and intentionally (not directly
and by accident) to particular animals (not populations of animals).
Dissent: Noscitur a sociis canon: harm is one of 10 words, the other 9 are affirmative and intentional
conduct directed against specific animals. Noscitur a sociis applies and harm should be interpreted like
its associates.
Rule of lenity canon: The Secretary’s interpretation would mean a large number of routine private
activities are subjected to strict-liability penalties when they fortuitiously injure protected wildlife, no
Mitchell- Brown Fall 2018
matter how remote the chain of causation or how difficult to foresee the injury may be. Worried about
ppl getting land taken!( bias of dissent is the poor farmer who has a spotted owl on land and can’t cut
trees to make money)
Whole act canon: The Secretary’s interpretation of harm does not fit with the use of take throughout
the ESA. All references to taking involve direct acts towards animals
Expressio (inclusion) unius canon: Congress’s explicit prohibition of habitat modification in the one
section would bar the inference of an implicit prohibition of habitat modification in the other section.
Rule against surplusage canon: By defining “harm” in the definition of “take” in §1538(a)(1)(B) to
include significant habitat modification, the regulation makes the habitat modification restriction in
§1536(a)(2) almost wholly superfluous. ( if almost not superfluous!)
Legislative history canon: Dissent only uses legislative history to respond to the majority. Habitat
modification and takings were viewed as different problems, addressed by different provisions of the
Act. acknowledges that the S. Committee Report and the House Conference Committee Report clearly
contemplate that it will enable the Secretary to permit environmental modification. But the text of the
amendment cannot possibly bear that asserted meaning....
Structure of the Statute canon: Dissent uses legislative history here [p. 485] to argue that habitat
modification and takings were viewed as different problems addressed by different provisions of the
Act.
Exam Keys
Plaintiff argues
Agency responds
Argue same fact in different ways
When the rule is the issue ( PJ / chevron or skidmore): apply the facts to figure out which rule applies. Say why picked
this rule over that one.
Torts: fact 1 raises an issue and fact 2 eliminates it: these are points must discuss both conclusion is clear. Say fact 1
raises___ fact 2 resolves it so there isn’t a cause of action.
Your answer is like giving directions you want the professor to arrive at your location
Explain doctrine and apply facts Noscitur words are known by their associates-> here,
Signal to the reader you know the subject matter give an intro. must asses weaknesses of “ winners case”
Call of Q : how would the court decide and why
Mitchell- Brown Fall 2018