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.
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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:
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3-4 page paper analyzing a fact pattern on equal protection (10%)
Due Friday of Week 4:
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3-4 page paper analyzing a fact pattern on administrative law (10%)
Due Monday of Week 6:
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Long paper (25%)
Friday of Week 6: Final exam (40%)
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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.
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READINGS
Background Readings (not required, but potentially quite useful):
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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
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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)
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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
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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)
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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
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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)
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FACT PATTERN DUE
Class 3b: Judicial Deference and Oversight
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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
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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.
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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
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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
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R. Shep Melnick. Between the Lines. Chapters 1-3, 11, 12
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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:
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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