Course Information and Syllabus - Texas Wesleyan School of Law

Legislation & Regulation § 1
Course Information and Syllabus
Fall 2011
Professor Terri Lynn Helge
Office: Room 131
Office Telephone: 817/212-3942
Email: thelge@law.txwes.edu
Office Hours: Monday – Thursday: 9:00-10:00 a.m., and by appointment
Class Meetings: Tuesday & Thursday: 1:30-2:45 p.m., Room 202
COURSE MATERIALS
The following text is required for the course:
Manning & Stephenson, LEGISLATION AND REGULATION (Foundation Press) (“Casebook”)
In addition, I will post problems related to the material we are covering in the Casebook on our LexisNexis
Web Course site. You are responsible for analyzing each problem prior to the class for which the problem is
assigned. You will be called on to participate in class discussions related to the assigned problems.
COURSE OVERVIEW
Legislation & Regulation is about the process and techniques of statutory and regulatory interpretation.
Unlike most of your other first year courses, you will not learn the doctrine of any specific type of law in this
class; instead you will learn the theory and practice of interpretation. You will learn how to read statutory
text with care, how to diagnose the interpretive problem in the text, and how to address that problem using all
the tools developed and debated by the courts. You will also learn to recognize the theoretical commitments
that motivate different judicial approaches to statutory and regulatory interpretation. Modernly, most areas
of law are comprised at least in part of statutory and regulatory authority. Accordingly, this course is
excellent preparation for summer legal work, for upper-level courses that rely extensively on statutory law
(such as tax, securities, environmental law, labor law, copyright law, etc.), and especially for all forms of
legal practice after graduation.
The Role of this Course in the First-Year Curriculum: This course differs from many of your other firstyear
courses (e.g., Torts and Property) in three significant ways:
• First, the other first-year courses focus on a specific substantive area of law. By contrast, Legislation
& Regulation does not focus on a specific substantive area. Instead, this course introduces you to the
various approaches and tools that judges and attorneys use to interpret statutes. The course also
introduces you to administrative law. Every lawyer must be familiar with statutory interpretation
and administrative law because statues and administrative rules make up a fundamental part of our
modern legal system.
• Second, in first-year courses, many professors focus on common law rules developed in judicial
opinions. (Broadly speaking, the common law is case law rendered in the absence of a statute or
other enacted law.) Common law is important, and by focusing on the common law during your first
year, you will learn how to carefully analyze the opinions that judges draft, which is a fundamental
skill. Nevertheless, as you will discover in your advanced courses, most areas of law are now
governed by one or more statutes and by administrative regulations. In these areas, judicial opinions
are still important because case law interprets unclear statutes and regulations. But the primary
source of authority is the statute, which may be supplemented by administrative regulations.
Accordingly, in Legislation & Regulation, we will read cases, but the cases differ from those you

ead in your other first-year courses in that they generally involve a court interpreting a statute or
regulation rather than adding to the common law.
• Third, in your other courses, you will often read cases in which courts develop common-law rules.
This may lead you to believe that the goal of reading cases is to identify the black-letter law. But in
Legislation & Regulation, you will learn fewer rules. Judges frequently disagree with respect to the
approaches and tools that courts should use in interpreting a statute. In this course, you will find that
often, there are no hard-and-fast rules, and there is not one right answer. In reading the cases, rather
than identifying the black-letter law, you will need to focus on the approach and the tools that the
court uses in interpreting the statute. By understanding the various approaches to and tools used in
statutory interpretation you will learn to argue effectively on your client’s behalf, no matter which
competing interpretation of the statute favors your client’s position.
Briefing the Cases: Because this course differs from your other courses, you should take a slightly different
approach to briefing cases. Most of the cases that we read will involve a situation in which it is not clear
how some specific statutory language should be interpreted in applying the relevant statute to the facts of the
case. The issue is usually what approach does the court follow and what tools does it use in interpreting the
statute and resolving the case. The cases that we will read involve statutes from various substantive areas,
e.g., criminal law, environmental law and employment law. But you do not need to focus on the specific
substantive rule that is at issue in the case. Your goal is not to learn criminal law, environmental law or
employment law for this course. Instead, you should take the following approach in briefing the cases:
• First, identify the specific statutory language at issue. If I call on you in class, you should be able to
tell me specifically what language in the statute the court is concerned with.
• Second, identify the possible ways in which the statute could be interpreted. Usually, one party will
argue for one interpretation and the other party will argue for another. You should know which party
supports a given interpretation and the argument that party makes in support of it.
• Third, identify the interpretation that the court determines is appropriate and which party wins as a
result.
• Fourth, consider why the court settled on the interpretation it chose. What approach to statutory
interpretation did the court use, i.e., intentionalist, purposivist, or textualist? What tools of statutory
construction did the court use, e.g., canons of construction or legislative history?
• Fifth, consider whether you agree or disagree with the court and why.
COURSE REQUIREMENTS
LexisNexis Web Course: We have a course web site on LexisNexis Web Course, available at
www.lexisnexis.com/lawschool. You are required to register for the site and check it regularly. During the
course of the semester, I will post course materials on our LexisNexis Web Course site, so it is important that
you register as soon as possible. Periodically, I will send emails to the class through LexisNexis Web
Course. Therefore when you register, use an email address that you will check frequently. I encourage
students to use our LexisNexis Web Course site to complement our readings and in-class discussions. Feel
free to post links to news stories or articles or your own comments or discussions relevant to the material we
are covering this session. If you have questions about LexisNexis Web Course, you should contact the law
school’s LexisNexis representative.
Class Preparation: Class preparation is required. If you do not regularly prepare for class meetings, you
will have difficulty mastering the material. Adequate preparation includes a careful briefing and analysis of
the cases, problems and other assigned materials.
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Attendance: Regular attendance is critical to putting the pieces together over the semester. The law school
attendance policy will be enforced. You are deemed absent if you are not in the classroom when class is
scheduled to begin or if you leave the classroom before class is dismissed. You are responsible for signing
the attendance roster during class and for keeping track of your absences. The seat you select on the 1 st day
of class will be your assigned seat for the semester. It is your responsibility to ensure that your name appears
on the seating chart in the correct place and that you sit in the appropriate seat. Please refer to the law
school’s Academic Standards for pertinent information regarding the law school’s attendance policy.
Participation: Participation in class dialogues and discussion is required. You should expect to be called on
at random during class. If for some reason you are not prepared on a given day, please let me know before
class starts, and I will not call on you that day. You are allowed only one such “pass” for the entire semester.
Your final grade may be adjusted to reflect the quality of your participation and your preparation, when
called upon, to present a case or problem in class. I may reward a student whose class participation over the
course of the semester I find to be particularly valuable by adding one grade increment to that student’s final
grade. Note that it is the content and quality of your participation that is the basis for the award, not the
quantity. Failure to be prepared when called upon or disruptive classroom behavior may result in a penalty
such as dismissal of the student from the class meeting and/or a deduction of one grade increment from the
student’s final grade for each such occurrence.
FINAL EXAMINATION
Your grade in this course will be based primarily on your performance on the final exam. The final exam
will consist of a combination of multiple choice questions, short answer questions, and essay questions. I
will provide you with more details about the exam later in the semester. Because the exam questions are
confidential, you must return the question booklet with your exam number on it to receive credit for the
exam.
For multiple choice questions, read the questions very carefully. Each question stands on its own facts unless
otherwise indicated. Do not assume or make up additional facts. I have tried to create one “best” response
for each. If two or more answers are true for any question, choose the more complete and specific answer. If
you feel there is no best answer or that the question is in some other way defective, you may jot down the
question number and your challenge to the question on your exam. If you convince me that the problem is
defective, I will eliminate that question from the exam for all students.
USE OF ELECTRONIC DEVICES/RECORDING
As a courtesy to your classmates and me, please make sure your cell phone, pager or similar electronic
device is turned off at the beginning of class. If you are expecting an emergency call, please use the vibrate
or text message feature on your cell phone and leave class before answering any call. In addition, please be
certain that your computer is silent. During class meetings, your use of any electronic devices must be solely
for purposes directly related to the class. Your use of electronic devices for any other purpose is prohibited.
Examples of prohibited uses of electronic devices include surfing the internet, updating your Facebook page,
playing games of any kind, and reading or sending electronic messages. Subject to the Law School
Disability Policy, you may not record (audio or visual) any class without my prior permission.
LAW SCHOOL DISABILITY POLICY
Texas Wesleyan School of Law adheres to a disability policy that is in keeping with relevant federal law. The
law school will provide appropriate accommodation as determined by the Assistant Dean of Student Affairs
in consultation with the Director of the Counseling Center. Students must notify the Assistant Dean of
Student Affairs of any permanent or temporary disabilities and must provide documentation regarding those
disabilities prior to the granting of an accommodation. Due to the law school’s policy of testing anonymity,
students should not discuss their disabilities with professors. For assistance, students should consult with the
Assistant Dean of Student Affairs.
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READING ASSIGNMENTS
We will read and discuss the reading assignments for the course in the order indicated below. Please note
that the numbered reading assignments listed below do not correspond to individual class meetings. For any
given class meeting, you may be responsible for more than one of the numbered reading assignments. At the
end of each class, I will let you know which reading assignments we will cover in the next class meeting.
Assignment for the First Class: Please read and be prepared to discuss reading assignments 1 and 2.
Note: I reserve the right to vary this syllabus at any time as I deem necessary.
Introduction to Legislation and Statutory Interpretation
1 Foundational Theories of Statutory Interpretation pp. 2-3; 19-22; 201-215
2 The Legislative Process pp. 22-28
The Letter of the Law vs. the Spirit of the Law
3 The Classic Approach pp. 28-49
4 The New Textualism pp. 49-67
5 Judicial Correction of Legislative Mistakes:
Absurdity and Scrivener’s Error
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pp. 85-111
Statutory Interpretation: Determining the Meaning of the Text
6 Specialized or Ordinary Meaning? pp. 111-115
7 Colloquial Meaning or Dictionary Meaning? pp. 126-140
Statutory Interpretation: Legislative Sources
8 Sources of Legislative History pp. 140-142; 152-160
9 Legislative Acquiesce pp. 160-162
10 Uses of Legislative History pp. 163-201
11 Conflicting Statutes & Implied Repeal Handout
Statutory Interpretation: The Textual Cannons
12 Introduction to Cannons of Construction pp. 219-224
13 Noscitur a Sociis, In Pari Materia, the Identical
Words Presumption and the Rule Against Surplusage
pp. 233-249
14 Expression (or Inclusio) Unius Est Exclusio Alterius pp. 224-233
15 Ejusdem Generis pp. 249-266
Statutory Interpretation: Substantive Cannons of Construction
16 The Constitutional Avoidance Doctrine pp. 266-288
17 The Clear Statement Rule pp. 288-306
18 The Rule of Lenity pp. 327-337
Introduction to Regulatory Law
19 The Role of Administrative Law and Overview of the pp. 358-379; 580-603
Regulatory Process
20 Notice and Comment Rulemaking pp. 604-641; 739-756
21 Rulemaking vs. Adjudication pp. 641-674
22 Agency Guidance Documents and Interpretive Rules pp. 674-697; 706-717
23 Judicial Review of Agency Rules pp. 717-739; 756-781
24 Judicial Review of Agency Interpretations pp. 792-835
25 Deference and Textual Interpretation pp. 835-867
26 Limits on Chevron’s Domain pp. 916-940