Key to effectiveness in demanding legislation is formal organization,

Supply Patterns in Legislative Markets - Public choice theorists don't believe that legislators vote in the public interest, but instead with the primary goal of re-election

Some Consequences/Highlights from Public Choice Theory

Criticism of Public Choice Theory

Role of courts

Kingdon's Theory - alternative to static public choice model - de-emphasizes the role of interest groups and argues that public officials (President, Cabinet, Congress, leaders of political parties) set political agenda - interest groups less visible and usually formulate and debate policy alternatives

Garbage Can Theory - Congress is an organized anarchy with no linear process for identifying problems, defining alternatives, and reaching decision - legislation created when streams containing problem, possible solutions, and push for change converge

Big government minimizes corruption - checks and balances, bicameralism provide deliberative review

Vetogates - procedural doors that bills must pass through

Consequences of Procedural Hurdles

Positive Effects of Procedural Hurdles

Role of courts:

Liberal Theory - statutes should be hard to enact

Republican Theory - deliberative value of process

Social Choice Theory - political outcomes under majority-voting schemes inevitably will be incoherent, will not necessarily reflect the preferences of the majority, and therefore will lack legitimacy

Majority Cycling - majority can't resolve choice among 3+ mutually exclusive alternatives; solution is to intervene with procedures to limit pure majority rule, or legislators will respond on their own by strategic rather than sincere voting (Arrow's paradox - voting between2 alternatives doesn't lead to efficient outcome)

Structure-Induced Equilibrium - emphasizes the importance of structure/institutions to the existence of political rationality, because unless decision structure exists, no reasoning or decisions are possible

Influenced by game theory and emphasizes the importance of institutional structures to constrain and shape behavior - characterizes outcomes in terms of “balance” or “equilibrium”

Political outcomes depend on sever interdependent decisionmakers, who sometimes act simultaneously and sometimes consecutively - each decisionmaker is aware of interdependence

Criticism - preferences viewed as stable and unchanging - assumption that players have complete information about other's preferences is oversimplifying

Article I, §7 (bicameralism and presentment) Game - the procedural requirements of bicameralism and presentment can be modeled as a sequential game, in which all players want to enact legislation reflecting their own preferences, but the players realize that their preferences may have to be compromised to guarantee the cooperation of other players - committees adjust bills to appeal to median legislator; take into account need for approval of second chamber, president

can base employment/wages on merit system or ability test

History of promoting from within, and we need these tests to make sure people are qualified.

Legislative history: Senator Power quote - point of the provision is to allow employers to give general ability and intelligence tests.

Title VII says that there is no requirement of affirmative action to correct imbalances

Test has nothing to do with qualifications for the job effect of it is in fact to keep the Black employees in the lowest division.

Senator Power's amendment was modified. It was a compromise.

Broad lens Broad purpose was to prevent discrimination and promote equality; it was to stop this type of thing from happening - EEOC: tests have to be validated to make sure they relate to jobs.

NOT really afirmaive action: look at the number of people with a high school diploma from each race

Make up of the firm is the same as it was in 1955

Brennan: Help legislature enact what he thinks their policies and intents are

Rehnquist: Enforce the bargains struck by the elected legislature

Blackmun: safety valve - if a Court misinterprets a statute, Congress can fix it

“Discrimination” was not clearly defined in Civil Rights Act; Tough to do, and legislation was hard enough to pass as it turned out

Bill supporters said this wouldn't happen; Possible they said it just to get the bill passed

Weber is really about race; it doesn't apply to the question as sex.

This is a government agency; Weber was a private business. This falls under the equal protection clause.

Sex was just thrown into the act. The legislature never really intended to level the playing field with women.

Companies would be blackmailed by the threat of lawsuits into forming affirmative action plans.

Idea that white men are now an underrepresented political minority

Company should not be penalized for going according to “spirit” of the statute (Weber)

Dissenters have a definite public choice model - very difficult for the people to overcome through legislative mechanism

Majority says that when legislative is really important, we get it right. Pluaralism works.

Genuine Interpretation v. Spurious Interpretation

Specific Intent v. Imaginative Reconstruction -

Narrow role of legislature - legislatures exist only to pass statutes and not to impose their will on people

Incoherence of Intent - intent is incoherent or indiscoverable because of the collective nature of the legislature

Inevitability of interpretive discretion and interstitial lawmaking - critique of imaginative reconstruction is that it is more imaginative than it is reconstruction

Question: Did act forbid hiring of rector?

Holding: title of the Act, the evil which it intended to remedy, the circumstances surrounding enactment, and the legislative history all suggest that the intent of Congress was not to exclude immigrants such as a rector, but only to stop the influx of cheap, unskilled labor.

Use of Leglislative intent: looks general goal of the law and tailors the text to meet the goal (general intent); asks what the legislators thought they were doing as to the particular issue (specific intent)

Question: Issue of whether Π's layoff was legal?

Holding: layoff was legal. If Congress had seen the consequences, they would not have passed the law

courts have no authority to even apply a statute to a problem unless the statute's language clearly targets that problem

courts interpreting statutes have no business figuring out legislative intent, which is an incoherent concept

textualists look at text, related statutes, dictionaries, common law, judicial background, context, canons of interpretation, no legislative history

To the extent it is mined to determine intent, must be rejected as a matter of constitutional principle because law must be objective and impersonal, not subjection and intentional

even if intent were a proper criterion and were constitutional to consider, the debating history preceding statutory enactment would not be reliable evidence of such intent

In any major legislation, history is extensive, something to please everyone

Intentionalist approaches are inconsistent with the rule of law, with separation of powers, and with the prohibition on delegation to legislative subgroups (committees) in Article I, §7

Judges aren't competent to evaluate legislative history

Legislative history gives the willful judge a mechanism to evade rather than enforce the law

Certainty - statute will apply uniformly

Separation of powers - courts shouldn't be making law

Respect of process and procedures of Congress

Improves congressional decision making, encouraging deliberation and accuracy

Unjust results in individual cases

Congress is not likely to be affected by judicial textualist approach

Textualism may not create that much more clarity

Assumption that statutory language used is neutral/objective and is applied neutrally/objectively is not necessarily true

Legislative history/intent may not actually be that ambiguous or hard to identify

Legislatures may not know words they should use, as in Marshall

Holding: Lockes were late

Dissent: Act contained drafting errors, so court should at least pause before accepting literal reading. Implementing regulations do not use “prior to” wording, but say “on or before,” suggesting that the BLM itself recognized that the statutory language was unclear. BLM has made similar mistake on at least one occasion.

Questions: Can evidence of Π's prior convictions be admitted to impeach his testimony?

Majority (STEVENS) Imaginative Reconstruction: rule was clearly not intended to protect civil litigants from prejudice, so Rule only applies to criminal Δs.

Concurrence (SCALIA) (Textualist)

Dissent (BLACKMUN) (Purposive)

NOTE: Textualist Scalia also rewrote statute, even though meaning was plain, because he thought it was absurd as written, that the absurdity was unintended, and unintended absurdity justifies departure from plain meaning.

Questions

Δs argue

Holding: LSD on blotter paper constitutes a mixture for purposes of the statute, and so weight of blotter paper is included.

Easterbrook's majority opinion example of new textualism:

Cumming's Dissent: DC Circuit held no mixture, relying on ordinary definition as well as sentencing guidelines, which takes no position. Court also said language could have meant liquid in which LSD is dissolved. Also, subsequent legislative history indicates Congress likely intended carrier weight not to be included, and correction has since passed unanimously in Senate, pending in House.

Posner's Dissent: Sentencing scheme based on weight makes sense for drugs sold based on weight, not those sold by dose like LSD, which is not mixed with something else. Unequal punishment based on carrier, which is irrelevant to potency. Difficulty determining weight of drug overcome by basing punishment on number of doses sold. Instead of completely avoiding constitutional question, flexible interpretation could avoid violation of equal protection by majority.

FACTS: Dept. of Labor and IRS came to Brogan's house to question him about union activities. He denied taking payments from employers (“exculpatory no”). Prosecuted under § 1001 - making false statement that disrupts a federal investigation..

Argument for the dissent

Concurrence (GINSBURG)

Majority SCALIA on p. 3 It is Not our role to restrict the unqualified language of a statute to the particular evil from something other than the text of the statute itself.

Take home point You should really try to hang your arguments on something in the text. Once you concede, you lose a lot.

Changes in Social Context - interpretive creation of `exceptions' to a statute's broad mandate based on the interpreter's judgment about the statute's goals and the extend to which other goals should be sacrificed (think Holy Trinity)

New Legal Rules and Policies - agent might receive inconsistent directives over time - interpretation will change to have a reconciliation of conflicting statutory mandates, in which one of the statutes often is given a narrowing interpretation to accommodate the policies of a later statute

New Meta-Policies - endogenous meta-policies are those generated from the principal herself and are just a more dramatic form of inconsistent directive - modify original policy to take into account supervening statutory policies - exogenous meta-policies are those generated from an authority greater than the principal - construe a statute narrowly to avoid constitutional problems based on the legislature's meta-intent not to pass statutes of questionable constitutionality

Question: May boyfriend/female partner may adopt the child?

Holdning: NY hasn't adopted a policy disfavoring adoption by either single persons or homosexuals.

Question: Can CA court reinterpret meaning of Code to now mean comparative negligence?

Holding: code should be reinterpreted to codify a rule of comparative negligence

Dissent: Society may have changed, but proper interpretation is to follow original intent. Statute should be updated legislatively, not judicially.

Text only said “persons” or “qualified electors” - meaning changed over time

Argument: by using vague language, legislature intended the meaning to change over time

Law as text that satisfies constitutional requirements of Article I, section 7. Rule of law = law of rules.

Judge as faithful agent, linguist, grammarian

Some strengths: objective and transparent, democratic, predictable

Some weaknesses: limits of language, blind to its own subjectivity, unconnected with consequences

Proponents: Holmes, Scalia

Examples: Brogan, Locke

Law as legislative deals/bargains

Judge as deal enforcer, Sherlock Holmes

Some strengths: practical, realistic, helpful

Some weaknesses: very expensive, manipulability, do you trust judges to do this? Is there really single legislative intent?

Proponents: Hart & Sacks, Posner, Pound

Example: Holy Trinity, Stevens in Bock Laundry

Law as solving social problems

Judge as deal adapter

Some strengths: helpful and practical, emphasis on reason, justice

Some weaknesses: do you trust judges to do this (who are they? What are their resources?), unsettles expectations

Proponents: Dworkin, Eskridge

Example: Weber

Example - “any sheriff, constable, peace officer, state road officer, or any other person charged with the duty of enforcement of the criminal laws” - “other persons” language doesn't include prosecutors since specified officers identified are all badge-carrying officers in the front line of law enforcement

criticized for faulty premise that all possible alternative provisions were considered and rejected by legislature

Don't have to apply the “rule of the last antecedent” if not practical; also can be overcome by statute or past historical use

Not A and B means not A or not B

Not A or B means not A and not B

Title of a statute is informative

Preambles and purpose clauses are helpful when there is ambiguity in clauses

Provisos and statutory exceptions should be read narrowly

Avoid surplasage don't interpretation in a way that will render something else redundant

Presumption of consistent usage and meaningful variation within the statute

Rule against interpreting a provision in derogation of other provisions: Avoid operational conflict, philosophical tension, structural derogation

Strict Construction of Statutes in Derogation of Sovereignty - if statute is written in general language, presumed that it only applies to private parties; governments and their agencies not included unless their inclusion is necessary to effectuate purpose of statute

Strict Construction of Public Grants - public grants by government to private parties construed narrowly, in favor of the government

Strict Construction of (Some) Revenue Provisions - tax laws strictly construed in favor of taxpayer - where there is reasonable doubt as to the meaning of a revenue statute, doubt resolved in favor of those taxed - new vies may be tax-imposing provisions to be liberally construed, tax-exempting provisions strictly

Tiebreaker - canon affects outcome only if, at end of the basic interpretive process, the court is left unable to choose between 2 competing interpretations put forward by parties

Presumptions - at beginning of interpretive process, set up a presumptive outcome which can be overcome by persuasive support for the contrary interpretation

Clear statement rules - purports to compel a particular interpretive outcome unless there is a clear statement to the contrary

Separation of powers: legislatures create crimes, not courts

Probably save the rule of lenity for cases that are really on the fence

Justification: Notice: don't get somebody who doesn't know what they're doing is bad

Attempt to make language in criminal statutes more specific to limit prosecutorial discretion

Muscarello - ∆ convicted for “carrying” a gun (gun was in the trunk of his car during a drug sale)

McBoyle - § 1919 are airplanes stolen “vehicles” in interstate commerce?

Interpret statutes to avoid Constitutional problems

Questionable aspects of this canon

NLRB v. Catholic Bishop of Chicago - “first identify `the affirmative intention of Congress clearly expressed'” before reaching constitutional question

Almendarez-Torres - - “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter”

Supreme Court in 80s and 90s created or clarified “clear statement rules” that reflect constitutional norms of federalism.

Basic question: how much power can Congress exert over the states

Hallmark of the Rehnquist court: we don't want Congress to exceed its power under the Commerce Clause constitutional rights aren't to be totally trusted to the political process

Canon allows for federalism to impinged, but Congress has to be really specific to allow it

Ashcroft v. Gregory -MO Constitution set mandatory retirement age of 70 for most state judges. Πs, state judges, sought declaration that this violated ADEA by specifying mandatory retirement age for employees covered by Act, which covers state and local governments are employers. Act excludes political officers including appointee on the policymaking level or immediate adviser with respect to the exercise of the constitutional or legal powers of the office

common law

the legislative background of the statue

other statutes and their interpretation.

The traditional rule was that extrinsic aids shouldn't be considered if the statute had a plain meaning.

The new textualists believe that the common law and other statutes are usually admissible extrinsic evidence, but legislative background or history is not

Textualist: will look at common law as a source of meaning

Intentionalist - what was Congress getting at? Trying to overrule common law?

formal history of a statute's evolution is widely considered relevant to statutory interpretation, even in jurisdictions whose courts won't examine legislative debates

legislative history usually refers to the internal legislative pre-history of a statute (the institutional progress of a bill to enactment and the deliberation accompanying that progress)

circumstances of enactment raise red flag

language isn't clear

purpose isn't clear

need to define terms of art

inconsistency

absurd result

Legislative staff members

Comments from a bill's sponsor probably get more deference

Presidential signing statements don't get it much weight

Conference and committee Reports

Sponsor statements

History of bill, rejected proposals

Floor and hearing colloquy

Views of non-legislative drafters

Legislative inaction

Subsequent legislative history

Leo Sheep - a lot of background historical material used by Rehnquist

most judges and scholars agree that committee reports should be considered as authoritative legislative history and be given great weight

most legislation essentially written in committee, and any collective statement will represent best-informed thought about what proposed legislation is doing

Limits on Usefulness:

Blanchard v. Bergeron - conflict in legislative history about attorney's fees

Sinclair - Sinclairs will lose farm unless they are able to file Chapter 12. Statute says they can't, but the Conference Committee Report says purpose of law was to allow actions like this

traditionally received less weight in evaluating intent compared to committee reports unless statement was made by sponsor or informed supporter of bill -

qualms about relying on statements made during floor debates and in legislative hearings often disappear when speaker is sponsor of bill or amendment that includes the statutory provision being interpreted

Montana Wilderness I : logging company wants rights to build road through a forest. They claim a provision of Alaska Lands Act allow them to build a road through

include proposals to amend the statute or enact a new and related statute; oversight hearings in response to agency and/or judicial implementation of the statute; efforts to “bend” interpretation of statute

Montana Wilderness II

“dog didn't bark” - when no one in the legislative discussions says that an important policy is being changed, a court should presume that no big changes are intended

Canon of Continuity - structure of American government suggests a constitutional bias against discontinuity in legal obligations and rights, so without clear indications to the contrary, statutes should be construed to maintain established rules and practices

Acquiescence Rule - If Congress is aware of an authoritative agency or judicial interpretation of a statute and doesn't amend the statute, the court has sometimes presumed that Congress has acquiesced in the interpretation's correctness.

The Reenactment Rule - If Congress reenacts a statute without making any material changes in its wording, the Court will often presume that Congress intends to incorporate authoritative agency and judicial interpretations of that language into the reenacted statute.

The Rejected (or Neglected) Proposal Rule - If Congress (in conference committee) or one chamber (on the floor) considers and rejects specific statutory language, the Court has often been reluctant to interpret the statute along lines of the rejected language.

Bob Jones IRS changes policy in 1970 to revoke exemption for schools that discriminate

Question: Does ERISA ban on attachments of pensions apply to alimony and child support?

Holding::

Compares to other statutes FLSA, Title VII.

Court chooses FLSA

exemptions in 1964 Act excluding coverage of tribal employment and preferential treatment by industry near reservations. Unreasonable that Congress intended to eliminate longstanding statutory requirements of BIA employment as racially discriminatory, while reaffirming right of tribal and reservation-related employers to provide Indian preference.

subsequent action: 3 months after amendments to EEOA, Congress passed 2 new Indian preference laws.

Indian preferences had long been treated as exceptions to Executive Orders forbidding government employment discrimination.

Repeals by implication are unfavored.

absent affirmative showing of desire to repeal preferences, only permissible justification for repeal by implication is that earlier and later statutes are irreconcilable, not case here.

Step 1: What does statute mean? Is there an intelligible principle articulated (interpreted very loosely)?

Step 2: If there is no intelligible principle, is there constitutional problem (separation of powers, core legislative duty, etc.)?

specific standards the bureaucracy shall apply in administering the delegation; or

laying down an “intelligible principle” to which the administrators must conform

Ensures that important choices of social policy are made by Congress, the branch of government most responsive to popular will

Guarantees that, to the extend Congress finds it necessary to delegate authority, it provides the recipient of that authority with an intelligible principle to guide the exercise of the delegated authority

Ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards

Federal Level - once administrative state became more accepted, doctrine fell into disuse

State Level - doctrine is still alive and well in some states - reasons why it has survived at the state level

Proposed Revival at the Federal Level

Δs convicted for violating Live Poultry Code requirement that wholesaler can't allow buyer to select particular chicken. Code was promulgated as part of the National Industrial Recovery Act (NIRA) which authorized the President to approve codes of fair competition.

Holding: code-making authority is unconstitutional delegation of power because there is no standard for application, thus allowing trade and industry to regulate themselves

Facts: Union challenged Economic Stabilization Act, which gave President power to control fluctuation in prices, on grounds of excessive delegation because Act lacked requirement that controls be fair and equitable.

Question: Does Act has sufficient specificity to avoid the constitutional condemnation of excessive “blank check” authority to the President?

Holding: Act is not excessive delegation because

Procedural history

Holding: burden is on the agency to show that exposure to benzene at 10 ppm presents a significant risk.

Significant risk test (threshold) now the law.

Subsequent case rejects cost-benefit.

Concurrence (Powell) Record failed to establish that new standard was reasonably necessary. Even if they did carry burden, also required to determine that benefits bear reasonable relationship to costs because it is unreasonable to assume Congress intended to threaten economic viability of industry.

Concurrence (Rehnquist) - Non-delegation issue. Congress has to decide whether statistical possibility of future deaths should ever be disregarded in light of costs of prevention. Reading Act literally, tells Secretary to adopt most protective standard if he can, but excusing him from this if he can't, drawing no line on continuum of relative safety. Even though nondelegation doctrine is associated with strong judiciary, it is different - Congress now has to act to effectuate policy.

Dissent (Marhsall) -Secretary found exposure above 1 ppm to contribute to serious health problems, doesn't matter that risk in unquantifiable. Court not permitted to strike own balance between cost/benefit of occupation safety standards.

D.C. Circuit found that EPA's interpretation (but not statute) violated nondelegation doctrine.

Supreme Court disagreed and held that EPA's interpretation is not violation of nondelegation doctrine. C

Word “requisite” means “sufficient but not more than necessary”

Different from Benzene Rehnquist joins

Legislative oversight committees may become captured by the same forces that capture agencies

Opportunity costs for oversight - time spent monitoring agencies is time away from fundraising, casework, and enacting new programs to benefit constituents.

Most oversight is informal Lawmakers jawbone agency officials as policy is formulated or they intervene on behalf of constituents to present arguments and perspectives.

Mechanisms to provide members of Congress with information alert them to the need for aggressive oversight or that supports them as they engage in monitoring.

Pros: There is a stronger electoral connection

Cons: Takes away from agency autonomy

Give clear authority in organic statute

Broad mandate vs. detailed instructions

Police control vs. fire alarm

Appropriations Bills

power of the purse gives Congress an ongoing substantive power

backdoor “legislative veto” in the appropriations process - because most appropriations of discretionary money must be renewed annually, the process provides Congress continuing influence

Indirect control (other than underfunding)

In-house investigative arm making sure agencies are doing what they're supposed to be doing

Most agencies have one of these offices

Way to keep us updated on what agencies are doing

Legislative history is often created to tell agency representative to change things

In appointment hearings Congress may tell nominee what they want done. Discussion: “How's homeland security doing?”

Makes sure agencies are doing what they are supposed to be doing

Audits budgets, expenditures, etc.

Art. 2 § 1 “Executive power shall be vested in the President

Art. 2 § 4

Art 2 § 3 President has the power to ensure that laws are enforced

Constitutional History Constitutional convention writes constitution. What gets in?

Unitary executive: Only one president. Believe in strong executive/presidential power. Prez heads entire branch, and needs power over it. Buck stops at Prez. He needs to have removal powers

Prez doesn' t need total control

Independent Prez can't fire head unless meets statutory criteria goal is to make agency less politicized

Exec agencies Prez can remove at will

Some people quit when Presidents change

Chair people usually resign since President gets to pick the chairman

With no removal protection, President could just clean house right away

Rule after Humphrey's Executor: if they don't resign, President has to wait until their term expires

To deny President unrestricted power of removal violates the Constitution and is invalid.

Power to remove subordinate is inherent in executive power

Prez has no power to remove FTC Commissioner, except as granted by Congress

FACTS: Commission decides what former POW's get

Holding President can't remove commissioner, even when statute doesn't say anything

FACTS: Independent counsel appointed to investigate high ranking government officials for suspected violations of the law. Assumption that IC is under AG appointed by prez. Want a more neutral party to investigate. Richardson refused to fire special counsel and resigned. Eventually new AG would fire him

Issue: is statute not allowing President to remove independent counsel unconstitutional

Holding: Statute is permissible - no need for power of removal

Scalia dissent: Worry about unchecked prosecutorial discretion

Benefits of independent counsel statute

Agency submits proposal to OMB for “significant” regulation Economically significant: submit more detailed information (CBA)

OMB responds to agency proposal

If OMB gives pushback, agency usually tries to appease OMB: Fear of executive pressure, negative publicity from President

OMB cannot force agency to do anything

After Benzene, rule: CBA not allowed under governing statute: OSHA will submit CBA to the executive branch, BUT CBA cannot be the basis for their regulation

Powerful Tool for the President

Criticism of OMB review

Regulatory Plans: this is what we plan to do this year, etc.

Executive agencies: submit detailed CBA to OMB

Independent agencies: just a plan that outlines what they're thinking of doing

Objections to OIRA

Justifications of Cost/Benefit Analysis

Regan: Executive Order 12,291

Clinton: Executive Order 12,866

Clinton Approach has more transparency

Variation of Clinton approach by Bush: use of “prompt letters” to agency heads

Benefits of the methodology:

Downside of methodology - possible overstep of authority

This process takes place

There is a cost-benefit analysis, risk assessment. Least costly alternative

Which agencies need to do what w/ OMB

No judicial review of OMB. Conflict resolution by president or vice president (bound by statutes)

Used to be that OMB was a huge spot for lobbying, and now one of the changes in the order is that there is a designated person who has to be met with, and agency must be present at meeting

Is there a genuine need for federal regulation?

If there is a need for governmental intervention, why will regulation work better than some less restrictive alternative?

What are the regulatory options?

What are the benefits likely to be achieved through each option?

What are the likely costs of each option?

Explain the assumption it uses to calculate costs and benefits where risk and uncertainty are involved. It should discount values for future costs and benefits to obtain a present value.

In light of needs, alternatives, costs, and benefits, is the regulatory alternative chosen the best alternative?

Agency could develop a body of knowledge certain kinds of disputes

Relieve burden on the court

Congress can retain more control over the process Judiciary is more independent and might not as easily go along with what Congress wants

More predictable results with agencies (executive directives, etc.)

Public rights claims

private party vs. private party?

Balancing Test (O'CONNOR)

Private right created by public statute

FACTS: Knudsen sues Benson under Longhsoremans' and Harbor Workers' Compensation Act.Case tried by US Employees Compensation Commission. Commission awards Knudsen an award. Benson challenges the award

Court held that Act didn't violate due process and is constitutional because commission is limited to finding facts (not making legal determinations), and because statute allows de novo review for federal courts.

It is useful for commissions to serve as fact-finders because it relieves burden from courts.

Agency can always decide public rights (rights created by Congress by statute between government and an individual).

Agency can sometimes decide private rights. Court has to decide jurisdictional or constitutional facts de novo if dealing with private parties - other facts don't have to be reviewed de novo and Congress has power to defer to the agency. I

In this case, agency doesn't have jurisdiction over this case if there is no employer/employee relationship. Court gets to decide whether there is a relationship de novo.

Questions: Can Congress constitutionally give non-Article III judges the broad legal power to hear and to decide all legal controversies “arising in or related to” bankruptcy proceedings?

Holding: Constitution forbids Congress to grant this adjudicatory power to bankruptcy judges.

Northern Pipeline is interim case - See Schor for standard

Facts: Schor is an (investor) sues Conti (broker) before CFTC Commodities and Exchange Act. Schor convinces Conti to dismiss claim in state court and bring claim to commission. Conti agrees to have all disputes decided by CFTC. Schor loses, and challenges agency jurisdiction over claim.

Holding: Agency has right.

Rule-making no right to hearing

Adjudication right to hearing.

Is there a property interest? Remember, must be an entitlement (compare Roth with Perry)

If yes, what process is due?

Apply 3-part balancing test from Mathews (p. 834):

The organic statute creating an agency or vesting it with powers often specifies applicable procedures.

procedural regulations adopted by agency

APA provides procedural requirements of general applicability

The courts have created federal common law, imposing procedural requirements on agencies - these requirements, based neither on specific statutory provisions nor the Constitution, are designed to facilitate judicial review.

Judicially defined constitutional requirements of due process may also be applicable.

Holding: Due process rights were violated by not having a hearing

No right to a hearing when legislature makes a ruling

Holding: No hearing necessary for legislative action

Hearings for adjudicative facts who did what, when, where, why, with what intent

No hearings for Legislative facts don't usually concern the immediate parties but are general facts which tribunal decide questions of law and policy and discretion.

Goldberg v. Kelly Court held that due process requires pre-termination hearing because interests of recipient and state in not allowing wrongful terminations outweigh fiscal concerns. Minimum due process requirements should be met, with the recipient allowed adequate notice, ability to cross-examine and present evidence, ability to have attorney if desired.

Roth has a 1 year term as Prof at U of Wisconsin. He is denied renewal of contract without a hearing. Court finds no property interest

Perry Π had been employed in TX state college system as a teacher for 10 years under a series of 1-year contracts. College had no formal tenure system, but looking at faculty guide, there was evidence to support an informal tenure system

An unbiased tribunal

Notice of the proposed action and the grounds asserted for it

Opportunity to present reasons why the proposed action shouldn't be taken

Right to present evidence, including the right to call witnesses

The right to know opposing evidence

The right to cross-examine adverse witnesses

Decision based exclusively on the evidence presented

Right to counsel

Requirement that the tribunal prepare a record of the evidence presented

Requirement that the tribunal prepare written findings of fact and reasons for its decision

Holding: Not entitled to same hearing as in Goldberg

4 factor balancing test