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Leg Reg > Main > Flashcards

Main Flashcards

1
Q

main elements of legal system

A
  1. structure (machine)
  2. substance (what machine does)
  3. culture (operator)

Machine allegory

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2
Q

structure (element of legal system)

A

the durable framework that gives shape and definition to the whole system

  • constantly changing (diff parts at diff speeds)
  • separation of powers: leg, exec, judicial
  • federalism: fed/state
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3
Q

structure examples (element of legal system)

A

ex: number of courts and what jurisdictions
- Texas x2 sup cts of last resort: Supreme Court for civil/juvenile and Court of Criminal Appeals for criminal cases
- U.S. Supreme Court has 9 justices
ex: Legislature: House (435) and Senate (100)
ex: Executive: Pres, VP, Cabinet, Agencies, Boards, Committees, Commissions

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4
Q

substance (element of legal system)

A

aka the law, including the “living law”

  • rules, norms, and behaviors of people inside the legal system
  • manufactured by ppl w/in legal system

(ex: 35 mph on Hillcrest Road, taking other’s property is theft, FDA medicine packages rules, FDA expiration dates)

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5
Q

culture (element of legal system)

A

people’s attitudes–including beliefs, values, ideas, and expectations–toward the law and legal system

  • gets the legal process going
  • diverse: subcultures w/in culture (insiders-outsiders, white-black, young-old, Catholic-Jew, rich-poor, etc.)

(ex: being litigious; avoiding divorce, distrusting police)

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6
Q

legal culture of insiders

A

important sub-culture w/in legal system

judges, lawyers, those who work inside the legal system are insiders, so their values/attitudes make a big difference on the system

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7
Q

U.S. Constitution Right to Vote

A

Art I s1: leg pwrs vested in Congress (House/Senate)
s2: House - reps (directly chosen by people of states every 2y) and reps apportioned by state pop (aka vote weighting)

s3: x2 senators/state each get 1 vote chosen by state legislature (17A ppl directly vote Srs)

Art2.s1: exec pwr in president
Electoral College (apptd via state leg) vote for president
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8
Q

Shortcomings of

U.S. Const Right to Vote

A
  • VERY LIMITED PARTICIPATION
  • very restrained re R to vote
  • restrain the unruly masses
  • “sliver” of a right even further diminished at different times (non-property owners, black, women, <21y, native am, or by states)
  • amendments broadened participation level (gender, race, 18y, ~poll taxes)
  • does NOT address gerrymandering (except race 14A EPC)
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9
Q

Amendments to U.S. Constitution that broadened participation re Right to Vote

A 
14A/15A - equal protection and right to vote regarding race
17A - ppl direct vote for Senators
19A - gender
24A - poor (no poll tax)
26A - age (lowered to 18y+)
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10
Q

categories to consider re

State vs. U.S. Constitution

A
  1. text
  2. process
  3. substance
  4. direct democracy
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11
Q

State vs. U.S. Constitution: TEXT

A

state - substantially longer, statutory details, borrowing among states
(ex: TX = 90k words; U.S. = 4.5k)

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12
Q

State vs. U.S. Constitution: PROCESS

A

state - amended frequently, much easier to do
US - amended less frequently and much more difficult
(ex: TX = 507A and counting; US = 27A)

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13
Q

Amending the U.S. Constitution

A

proposed by 2/3 vote of both houses OR
proposed by 2/3 states in convention called
THEN
ratified by 3/4 state legislatures OR
ratified by 3/4 convention called in each state

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14
Q

State vs. U.S. Constitution: SUBSTANCE

A

BOTH provide citizens with rights
BOTH give structure to government
State - grants rights in the affirmative
(ex: TX: “All free men have equal rights . . .” )
U.S. - grants rights in the negative
(ex: “no state shall deprive any citizen . . .” )

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15
Q

State Constitutions vs. U.S. Constitution - DIRECT DEMOCRACY

A

state - efforts of DD via referendums and propositions to allow electorate to be directly involved in lawmaking process

U.S. - very limited participation (ex: direct votes for the Reps and Senators that will vote on the laws . . . not directly involved in lawmaking)

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16
Q

Federal Law vs. State Law CONFLICT

A
  • well settled that federal law usually > state law
  • tricky to determine whether there actually is a conflict
  • pre-emption question (express vs. implied)
  • implied includes: occupied the field or “by conflict”
  • impossible to comply w/both –> federal
  • state law obstacle in accomplishing congress purpose –> federal
  • Bokis v. AMS «< ADD MORE
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17
Q

Bokis v. AMS

A

pre-emption

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18
Q

Legislative Process: Enacting a Statute

A
  1. Rep sponsors a bill
  2. bill assigned to committee for study
  3. (if released) calendar for floor discussion
  4. (if simple majority) bill moves to other H/S
  5. bill assigned to committee
  6. (if released) vote/debate
  7. (changes) return to H/S for concurrence
  8. final returns to H&S for final approval
  9. President 10d to veto or sign
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19
Q

Legislative Process: Enacting a Statute

A
  • system is designed to make lawmaking difficult and force deliberations, accommodations, etc.
  • need to get through the VETOGATES
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20
Q

vetogates

A

Many points during the process where a bill can get hung up:

  1. committees
  2. doorway to floor
  3. floor debate & amendment
  4. other house
  5. conference committee
21
Q

Publication of Statute

A
  1. Enrolled Bill
  2. Slip Law
  3. Statutes at Large
  4. Codes
22
Q

Enrolled Bill

A
  • not yet signed by President
  • idential to what was passed by House and Senate
  • goes to President for signing (where it will be vetoed/signed or passed by default)
23
Q

Slip Law

A

law signed by president

looks like pamphlet

24
Q

statutes at large

A

end of congressional session, all slip laws are gathered together in order they were passed and put together

25
Q

EOP

A

Executive Office of the President

26
Q

OMB

A

Office of Management & Budget - oversees the implementation of the executive branch

largest office of the Executive Office of the President

27
Q

Office of Information and Regulatory Affairs (OIRA)

A
  • very powerful agency
  • w/in OMB
  • born out of EO Reagan 1981 to be a CHECK on agencies (cont. by EO Clinton 1993 aka bi-partisan)
  • jobs: (1) coordinate and (2) cost-benefit analysis
28
Q

OIRA’s job: to coordinate

A

OIRA coordinates 100s of agencies

29
Q

OIRA’s Job: Cost-Benefit Analysis

A
  • OIRA reviews admin rulemaking at 2pts (front and backend)
  • review dependent agencies
  • only reviews major rules ($100M/yr impact) – ex: petite pickles not big enough change/industry; ex: HHS pregant women eating fish = big enough
30
Q

Criticisms of OIRA?

A

enormous power
can delay rule hard essentially complete control
gate-keeping authority
cost-benefit analysis == can be pretty wonky

(ex: COB Analysis of DOJ’s Prison Rape Elimination Act . . . trying to come up with numbers: $310k/victim society willing to pay to prevent rape vs. $480k for victim to accept being raped) — gruesome, somewhat arbitrary)

31
Q

Why was OIRA established?

A
  • by EO Reagan
  • government seen as the problem, not solution
  • part of campaign of deregulating industries
  • OIRA = powerful CHECK on agencies
32
Q

what does “lenity” mean?

A

quality of being lenient

33
Q

rule of lenity

A
  • substantive canon of construction
  • rule of STRICT CONSTRUCTION
  • ambiguity or vagueness in laws whose purpose is to punish i.e. fine or imprisonment (usually a criminal statute) should be construed strictly
  • used b/c of issues w due process and mens rea
  • lenity = “quality of being lenient”
  • cases: Yates (fish), Marshall (LSD), McBoyle (plane)
34
Q

US v. Stanley J Marshall

A

LSD case
1990 decided
statute: selling >1g of “mixture” or substance containing “detectable amount” LSD –> 5y
selling >10g of mixture or substance containing LCD –> 10y
whether “carrier” of LSD = mixture/substance containing LSD
construed statute strictly:
- “mixture” as a mixture (the way the LSD solution mixed with the paper and became part of the paper vs. LSD carried by plane or in glass bottle)
- “detectable amount” = doesn’t have to be pure

35
Q

US v. Yates

A

fish case
2015 decided
Statute: 18 USC 1519 : punishes anyone who knowingly alters, falsifies, destroys records, documents, or any “tangible object” in interference of fed investigation
Captain Yates violation of conservation act via undersized red grouper
rule of lenity used by majority Ginsburg opinion
construed “tangible object” strictly

36
Q

US v. McBoyle

A

plane case
1931 decided
federal statute: prohibited transportation of stolen “motor vehicles” including “automobile, auto truck, auto wagon, or other self-propelled not designed for rails”
defendant stole and transported airplane
vague/ambiguous b/c airplane NOT prototypical motor vehicle
motor vehicle construed strictly

37
Q

codes

A
  • form of the law and final stage of publication
  • Office of Law Revision Council runs this process
  • clean up, reprint, and organize by subject matter and then COMPILE
  • broken up into TITLES
  • code is NOT actual law (the statutes at large are actual laws)
  • Code is more prima facie evidence
  • however, Congress has enacted sections of the Code over the years
38
Q

textualism

A

formalist theory of law interpretation that will look to the ordinary meaning of the legal text and most strictly does not look to outside the text (like at intent, purpose, values, etc.) to interpret the law. However, there are varieties of textualism with different degrees.

39
Q

textualism varieties

A
  1. strict textualism
  2. purposive textualism
  3. soft textualism
  4. pragmatic textualism
40
Q

strict textualism

A
  • only look to the text of the statute and other similar statutes for an answer and STICK TO IT, even if it creates absurd results
  • looking at ordinary meaning of the text (maybe using dictionary at the time to see what the ordinary meaning was at the time)
  • NEVER look to legislative/statutory history or scholarly articles
  • Ex: Lock case (where weird results with the end of year dates)
  • Ex: LSD case (“we know this is crazy, but”)
41
Q

U.S. v. Stanley Marshall 1990

majority re strict textualism

A

LSD case
1990 decided
statute: selling >1g of “mixture” or substance containing “detectable amount” LSD –> 5y
selling >10g of mixture or substance containing LSD –> 10y
whether “carrier” of LSD = mixture/substance containing LSD
construed statute strictly:
- “mixture” as a mixture (the way the LSD solution mixed with the paper and became part of the paper vs. LSD carried by plane or in glass bottle)
- “detectable amount” = doesn’t have to be pure
ABSURD result: drug makers with 9g of pure LSD vs. sellers with 1g in 10g carrier

42
Q

Lock case & LSD case

regarding strict textualism

A
43
Q

purposive textualism

A
  • text is the primary source for meaning
  • looking outside the text when results are absurd
  • example: TVA dissent
  • example: Breyer’s religious speaker argument in Holy Trinity
  • strengths:
  • weakness: what is absurd?
44
Q

Breyer’s argument in Holy Trinity

regarding purposive textualism

A
45
Q

Tennessee Valley Authority v. Hiram Hill (secretary of interior) 1978
dissent re purposive textualism

A
  • the text: Endangered Species Act: all fed agency actions may NOT jeopardize the existence of endangered species or result in the destruction or modification of its habitat
  • facts: snail darter determined endangered; area of dam construction determined last habitat
  • Dissent Powell/Burger source of meaning: looks primarily to the text but ABUSRD RESULT (abandoning virtually completed damn project spent $100M) –> so look outside the text at
    (1) congressional intent via congressional appropriations (congress kept funding the project) &
    (2) absence of legsilative history (no discussion about what to do about ongoing projects)
46
Q

Soft textualism

A
  • text is the primary source of meaning
  • test is NOT the exclusive source of meaning
  • looking outside/beyond the text when you want and at the very least to confirm your understanding of the text
  • ex: TVA majority
47
Q

Tennessee Valley Authority v. Hiram Hill (Sec. of Interior) 1978
majority – re soft textualism
(note: dissent re purposive textualism)

A
  • the text: Endangered Species Act: all fed agency actions may NOT jeopardize the existence of endangered species or result in the destruction or modification of its habitat
  • facts: snail darter determined endangered; area of dam construction determined last habitat
  • source of meaning: majority goes beyond the text and looks at history
    1. statutory history to argue that prior reiterations were too accommodating
    +
    2. congress didn’t put any exceptions & meant it
    Absurd Result = tiny goofy fish caused loss of $100M project already nearly funded
49
Q

pragmatic textualism

A
  • primary source is the text but not exclusive source for meaning
  • look outside the text when text is ambigious/not specific . . . and draw upon morals
  • example: Marshall dissent (Posner)
  • Weakness: accusing “Congress as “not thinking at all” and stepping in to interpret kinda goes against the concept of legislative power and democracy concept . . . a little bit of judicial activism here and legal realism (decided the ends first and justifying the means later)
50
Q 
Marshall dissent (Posner) 
regarding pragmatic textualism
A

wants to expand the analysis to look at the different carriers
paper . . . vs. sugar cube . . . vs. brick carrier
wholesale vs. retail distinctions
heroin vs. LSD distinctions
pure vs. mixture
how the law should be . . . costs/benefits what would be the best outcome on society

Leg Reg (5 decks)

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