POLS 3225: LAW AND PUBLIC POLICY IN THE US SUMMER 2014 INSTRUCTOR: MIRANDA YAVER (mey2111@columbia.edu) SCOPE OF THE COURSE: “Scarcely any political question arises that is not, sooner or later, transformed into a legal question.” Alexis de Tocqueville, Democracy in America (1838) The United States separation-of-powers system necessitates close consideration of the interactions among the branches as they work to shape law and implement policy. These conflicts have important implications with respect to the laws that pass through Congress and the ways in which those laws are structured, the laws that are signed versus vetoed by the President, and upheld in the federal judiciary, as well as the stability of these laws over time. Moreover, given increasingly prevalent conditions of partisan conflict and legislative complexity, it becomes all the more important to consider not just the underlying laws, but also the real-world effects on matters of public policy and the laws that endure. This course is a survey that is aimed at introducing students to the American legal system, across four key dimensions of lawmaking: Constitutional Law, Administrative Law, Statutory Law, and Direct Ballot. While courts play a central role in all of these dimensions of lawmaking, the course will also emphasize the role of congressional (and citizen) delegation in statutes that, if challenged, come before the courts. The course is taught mainly through reading and discussing primary legal materials (mainly judicial opinions, but also statutes and regulations), alongside academic analyses of the topics covered over the summer term. The course is aimed at helping students to become familiar with analyzing legal materials; understand the different sources of law and how they interact with each other; understand better how America’s complex and fragmented lawmaking apparatus contributes to the ways in which policy battles are played out and the outcomes we observe; and to understand the ways in which law operates as a constraint on policy movement from the status quo. Gaining a better grasp on these issues should empower students to become better equipped to engage in policy analysis, legal work, and to understand better the complexities of American institutions at large. 2 COURSE REQUIREMENTS Students will be expected to come to class having read the material and being prepared to engage in the political and legal arguments that they present. There are many readings in the course, and I will notify you in advance if some are skim-worthy. Attendance and active participation will count for 15% of the grade. Due Monday of Week 3: 3-4 page paper analyzing a fact pattern on equal protection (10%) Due Friday of Week 4: 3-4 page paper analyzing a fact pattern on administrative law (10%) Due Monday of Week 6: Long paper (25%) Friday of Week 6: Final exam (40%) One week in advance, I will distribute a list of 7 essay questions that are cumulative from across the course material. 6 of these 7 questions will appear on the exam, and students will write mini-essays on 5 of them for the exam. Students are encouraged to prepare outlines in advance (and in groups, if you wish), but may not bring notes to the exam itself. I will provide a review session before the exam, and you may discuss questions with me during office hours as well. Papers may be submitted via email before class or handed in as hard copies during class. Policy Regarding Late Assignments: Because this is a summer class and thus moves at a particularly fast pace, it is imperative that students turn in work at the specified deadlines. Failure to do so will result in a letter grade reduction unless you have requested and received an extension in advance (granted for medical or family emergencies only). Work will not be accepted at all after the next scheduled class unless said extension was granted in advance. All students must sit for the final exam at the assigned day and time, with the only exception of university-approved absences. Columbia University is committed to ensuring that all members be able to engage fully in the academic opportunities and services provided, regardless of disability status, and to that end accommodations to this course can be made if necessary. Please feel free to discuss with me any concerns you may have. STATEMENT ON ACADEMIC INTEGRITY Columbia University holds firmly that maintaining academic integrity is a requirement of all members of our intellectual community. It is expected that all students will work in accordance with the student honor code. Thus, plagiarism, cheating, and receiving unauthorized assistance with the work in this course will not be tolerated. Should a student violate academic integrity in this class, the matter will be reported to the university administration. 3 READINGS Background Readings (not required, but potentially quite useful): L. Friedman, “What Is a Legal System?,” American Law: An Introduction (W.W. Norton, 2nd ed., 1998), 15-34 O. Kerr, “How to Read a Legal Opinion” [and Why], The Green Bag 11 (2007): 51-63 Gellhorn & Levin, Administrative Law and Process (reference text on administrative law and procedures) WEEKS 1-2: COURTS AND THE CONSTITUTION Class 1a: Introduction Introduction to the course – objectives, expectations, requirements Begin discussion of the US constitutional system, the role of courts, and constitutional interpretation R. Fallon, The Dynamic Constitution: An Introduction to American Constitutional Law (Cambridge University Press, 2004), 1-25 (overview of the American constitutional system); “Judicial Power,” 189-204 (overview of the role of courts in the system) Erwin Chemerinsky, Constitutional Law: Principles and Policies (Wolters Kluwer, 4th ed., 2011), chapter 1 (brief overview of competing theories of how to interpret a constitution and who has the authority to do it) Mark Tushnet, “How Courts Implement Social Policy” Class 1b: The Constitution and Individual Rights Discussion of rights creation on the Supreme Court Overview of levels of scrutiny afforded to different classes of persons Application in race-related cases and controversies General Topics on Rights in the SOP system William N. Eskridge, Jr., “Reneging on History? Playing the Court/Congress/President Civil Rights Game," California Law Review 79(2):613684 (1991) Whittington, Keith.2003. “Legislative Sanctions and the Strategic Environment of Judicial Review.” The International Journal of Constitutional Law 1(3):446-474. Charles Epp, The Rights Revolution, Chapters 2-3 Race and Equal Protection – Voting and Education Civil Rights Act of 1964 Voting Rights Act of 1965 Voting court cases (excerpts) o Northwest Austin Municipal Utility District Number One v. Holder (2009) 4 o Shelby County, Alabama v. Holder Education court cases (excerpts) o Grutter v. Bollinger, 123 S. Ct. 2325 (2003) o Gratz v. Bollinger, 539 U.S. 244 (2003) o Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) o Fisher v. University of Texas (2013) Brody Jr., Carl E. “Historical Review of Affirmative Action and the Interpretation of Its Legislative Intent by the Supreme Court.” 29 Akron L. Rev. 291 (1995) Class 2a: Courts and Individual Rights, Continued Gender and Equal Protection Court cases (excerpts) o Reed v. Reed, 404 U.S. 71 (1971) o Frontiero v. Richardson, 411 U.S. 677 (1973) o Craig v. Boren, 429 U.S. 190 (1976) o United States v. Virginia, 518 U.S. 515 (1996) R. Fallon, The Dynamic Constitution, “Equal Protection of the Laws,” 106-37 (overview of equal protection doctrine) L. Fisher and N. Devins, Political Dynamics of Constitutional Law (Thompson West, 5th ed. 2011), 303-328 (political-historical background to the gender cases) P. Breast, S. Levinson, J. Balkin, A. Amar, and R. Siegel, “What Justifies Special Constitutional Scrutiny for Gender …?,” Processes of Constitutional Decisionmaking (Aspen, 5th ed., 2006), 1202-03, 1205-11 LGBT Rights Defense of Marriage Act Court cases (excerpts) o Hollingsworth v. Perry (2013) o US v. Windsor (2013) Powers, Courtney A. “Finding LGBT’s a Suspect Class: Assessing the Political Power of LGBTs as a Basis for the Court's Application of Heightened Scrutiny.” 17 Duke J. Gender L. & Pol'y 385 (2010) Eskridge, William N. “Is Political Powerlessness a Requirement for Heightened Equal Protection Scrutiny.” 50 Washburn L.J. 1(2010) Class 2b: The Constitution and the Structure of Governance – Interstate Commerce and Congressional Regulatory Power Court cases (excerpts) o United States v. Lopez, 514 U.S. 549 (1995) (guns in school zones) o United States v. Morrison, 529 U.S. 598 (2000) (Violence Against Women Act) 5 o Gonzales v. Raich, 125 S. Ct. 491 (2005) (medical marijuana) o National Federation of Independent Business v. Sebelius, (Patient Protection and Affordable Care Act of 2010) Fallon, The Dynamic Constitution, 157-72 (overview of legislative authority, focusing on commerce power) Fisher and Devins, Political Dynamics, 55-107 (political-historical background to the commerce clause cases) McCoy, Thomas R. & Barry Friedman. “Conditional Spending: Federalism's Trojan Horse.” The Supreme Court Review (1988): 85-127. Dinan, John. “Congressional Responses to the Rehnquist Courts Federalism Decisions. 32 Journal of Federalism. (2002): 1-24 Frickey, Phillip and Steven Smith. “Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique.” 111 Yale L.J. 1707 Ferejohn, John and Barry Weingast. 1997. The New Federalism: Can the States be Trusted? Stanford: Hoover Institution Press. – Conclusion. Pittenger, John. 1992. “Garcia and the Political Safegaurds of Federalism: Is there a Better Solution to the Conundrum of the Tenth Amendment.” Publius 22: 1-20. Recommended: Jonathan Rodden. 2006. Hamilton’s Paradox: The Promise and Peril of Fiscal Federalism. Cambridge University Press. WEEKS 3A-4A: THE ADMINISTRATIVE STATE Class 3a: Statutory Delegation Overview of reasons for statutory delegation to agencies and to courts, and the mechanisms for doing so Normative implications of various delegations The Administrative State: Delegation and Control of Administrative Power S. Melnick, “Courts and Agencies,” in Making Policy, Making Law: An Interbranch Perspective eds. M. Miller and J. Barnes (Georgetown 2004), 89-104 D. Epstein & S. O’Halloran. 1996. "Divided Government and the Design of Administrative Procedures: A Formal Model and Empirical Test." Journal of Politics 58: 393-417. Huber, John, Charles Shipan & Madeline Pfahler. 2001. “Legislatures and Statutory Control of Bureaucracy.” American Journal of Political Science 45 (2): 330-345. Farhang, Sean. 2008. "Public Regulation and Private Lawsuits in the American Separation of Powers System.” American Journal of Political Science 52 (2008): 821-39. McNollgast. 1987. “Administrative Procedures as Instruments of Control." Journal of Law, Economics, and Organization 3: 243-77. Court cases (excerpts) o Goldberg v. Kelly, 397 US 254 (1970) o Matthews v. Eldridge, 424 U.S. 319 (1976) o Hamdan v. Rumsfeld, 542 U.S. 507 (2004) 6 FACT PATTERN DUE Class 3b: Judicial Deference and Oversight Court cases (excerpts) o Motor Vehicle Manufacturers Association of the U.S. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) o Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) o FCC v. Fox Television Stations Inc., 129 S.Ct. 1800 (2009) o Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984) o Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) Yackee, Jason Webb and Susan Webb Yackee. 2010. “Is Agency Rulemaking ‘Ossified’? Testing Congressional, Presidential, and Judicial Procedural Constraints.” Journal of Public Administration Research and Theory, 20: 261-282. Landes, William & Richard Posner. “The Independent Judiciary in an InterestGroup Perspective." Journal of Law and Economics 18 (1975): 875-901. Miles, Thomas J. & Cass R. Sunstein. “Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron.'' 73 (2008) The University of Chicago Law Review. Matthew Stephenson, “When the Devil Turns . . . Political Foundations of Independent Judicial Review,” Journal of Legal Studies 32 (2003): 59-89. Class 4a: Controversies and Challenges to Agency Implementation Limitations of control of agencies Reactions and challenges to agency actions Rules promulgated by the EPA under the Clean Air Act (CFR cites TBD) o DC Circuit cases challenging those EPA rules (cases TBD) o Rulemaking delegations authorized under the Clean Air Act Jacob E. Gersen & Anne Joseph O’Connell, Hiding in Plain Sight?: Timing and Transparency in the Administrative State, 76 UNIVERSITY OF CHICAGO LAW REVIEW 1157 (2009). Sean Gailmard and John Patty. 2007. Slackers and Zealots: Civil Service, Policy Discretion, and Bureaucratic Expertise. American Journal of Political Science 51(4): 873-889. Canice Prendergast. 2007. The Motivation and Bias of Bureaucrats. American Economic Review 97(1) Barry Weingast and Mark Moran. 1983. Bureaucratic Discretion or Congressional Control? Regulatory Policy-making by the FTC. Journal of Political Economy 91(5): 765-800. Charles Shipan. 2004. Regulatory Regimes, Agency Actions, and the Conditional Nature of Congressional Influence. American Political Science Review 98(3): 467-480. 7 WEEKS 4B-5B: LEGISLATION Class 4b: Introduction to Statutory Interpretation Canons of statutory interpretation and the funnel of abstraction Policy implications of narrower/broader judicial interpretations of statutes Statutory Interpretation CRS Report to Congress: Statutory Interpretation: General Principles and Recent Trends, http://www.fas.org/sgp/crs/misc/97-589.pdf Court cases (excerpts) o Caminetti v. United States, 242 U.S. 470 (1917) o Mortensen v. United States, 322 U.S. 369 (1944) o Cleveland v. United States, 329 U.S. 14 (1946) o Griggs v. Duke Power Company, 420 F.2d 1225 (1970) o United Steelworkers of America v. Weber, 443 U.S. 193 (1979) L. Friedman, “The Structure of American Law: Statutes and Statute Makers,” American Law: An Introduction, 108-127 A. Mikva and E. Lane, “The Age of Statutes,” Legislative Process (Aspen, 2nd ed., 2002), 3-51 A. Mikva and E. Lane, “The Interpretation of Statutes,” in An Introduction to Statutory Interpretation and the Legislative Process (Aspen 1997), 1-56 FACT PATTERN DUE Class 5a: Statutory Design W. Eskridge and P. Frickey, Cases and Materials on Legislation: Statutes and the Creation of Public Policy (West Group, 2rd ed., 1995), 86-103, “Legislative Drafting” (a brief practical overview) Sebastian Saiegh, Ruling by Statute, Chapters 2, 9 Moe, Terry M. “The Politics of Bureaucratic Structure." In Can the Government Govern?, John E. Chubb and Paul E. Peterson eds (1989). Washington, D.C.: The Brookings Institution Press. Schuck, Peter H. 1992. “Legal Complexity: Some Causes, Consequences, and Cures." Duke Law Journal. 42(1): 1-52. Statutes o Civil Rights Act of 1991 o Local Law Enforcement Hate Crimes Prevention Act of 2009 o Financial Bailout of 1989 (excerpts) o Clean Air Act of 1963 Class 5b: Political and Policy Implications of Interpretations and Design R. Shep Melnick. Between the Lines. Chapters 1-3, 11, 12 8 William Eskridge & John Ferejohn, Republic of Statutes. Chapters 1, 4, 5 George Lovell, Legislative Deferrals, Chapters 1, 4, 6 Maltzman, Forest & Charles Shipan. 2008. “Change, Continuity, and the Evolution of the Law.” American Journal of Political Science 52(2): 252-267. Farhang, Sean. 2009. “Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991.” Journal of Empirical Legal Studies 6: 1-34. Gersen, Jacob E. 2006. “Overlapping and Underlapping Jurisdiction in Administrative Law.'' The Supreme Court Review 1: 201-47. LONG PAPER DUE WEEK 6. REGULATING THROUGH DIRECT DEMOCRACY Advantages/disadvantages of pursuing policy through direct ballot vs. through lobbying the legislature Interpretation of ballot measures Normative implications of policymaking by the voters vs. legislature Concluding remarks on the course Class 6a: Kenneth P. Miller, Direct Democracy and the Courts (chapters 1-2, 4, 7) Thad Kousser & Mathew D. McCubbins, Social Choice, Crypto‐Initiatives, and Policymaking by Direct Democracy, 78 S. Cal. L. Rev. 949 (2005) Philip P. Frickey, Interpretation on the Borderline: Constitutions, Canons, Direct Democracy, 1 N.Y.U. J. Legis. & Pub. Pol’y 105 (1997) Hans A. Linde, Who Is Responsible for Republican Government?, 65 U. Colo.L. Rev. 709 Robert Cooter, Constitutional Consequentialism: Bargain Democracy versus Median Democracy, 3 Theoretical Inquiries in Law 1 (2002) Elmendorf, Christopher S. and Douglas M. Spencer. “Are Ballot Titles Biased? Partisanship in California’s Supervision of Direct Democracy.” 3 UC Irvine L. Rev. (2013) Recommended: Bowler, Shaun, Todd Donovan, and Trudi Happ. 1992. Ballot Propositions and Information Costs: Direct Democracy and the Fatigued Voter. The Western Political Quarterly 45(2): 559-68. Final exam review session/Q&A to be held between classes this week, at a time TBD. Class 6b: FINAL EXAM