Legislation and Regulation Help (Manning & Stephenson) Forum

[Thedude737]

Leg Reg is a relatively new subject for my school and we are using the Manning & Stephenson book. The book is pretty damn good but this is the first time my professor is teaching this course. He's often confusing and vague during class which I think reflects his hesitation with the material. I'm getting really worried about the final because I think grades will be like a crap shoot. The professor won't know what he's looking for, which means we won't know what we're looking for.

Does anyone have an outline on this book or can anyone direct me to any helpful sources to hammer home the material?

[foxtrottortxof]

I had Manning for LegReg and had friends who took Stephenson. The difference between even how they taught it suggests it really depends on what your professor is teaching whether an outline will help you.

[Thedude737]

I don't think the professor knows what he's teaching. He's an excellent professor, I had him for contracts last year. He had an absolute mastery of the material.

For Leg Reg on the other hand, he's just not that proficient with the material. I'm assuming its due to him never teaching the course before. All I'm really looking for is a secondary source to turn to when concepts are unclear.

[ph14]

I could use some leg reg help as well. Probably my least straight forward class.

[foxtrottortxof]

Hmmm, well, I didn't use a secondary source (nor would my outline be a good resource). Getting something for Admin will help with the regulation side, and I'm sure there's something out there like "Statutory Interpretation for Dummies."

[Thedude737]

If you weren't a Pat's fan, I'd suggest we could help each other.

[foxtrottortxof]

The best tool for statutory interpretation issues is to make a decision tree that you can just plug the statute into (Clear? Unclear? If clear, check for absurdity; if unclear, go to town with semantic canons, structural arguments, prior statutory usage, term of art, ordinary meaning, specialized language, dictionary meaning, etc.)

[foxtrottortxof]

If legitimately ambiguous, do legislative history and don't forget substantive canons, etc. That's pretty much it.

[Thedude737]

The best tool for statutory interpretation issues is to make a decision tree that you can just plug the statute into (Clear? Unclear? If clear, check for absurdity; if unclear, go to town with semantic canons, structural arguments, prior statutory usage, term of art, ordinary meaning, specialized language, dictionary meaning, etc.)

Solid advice, thanks! The trouble I'm really having with the class, which many others are having as well, is how each piece fits into the big picture. We are learning a lot of new concepts but I don't know where or how they fit in. We recently finished Chevron so it's coming together a whole lot more, but its still difficult to see the big picture.

[foxtrottortxof]

The best tool for statutory interpretation issues is to make a decision tree that you can just plug the statute into (Clear? Unclear? If clear, check for absurdity; if unclear, go to town with semantic canons, structural arguments, prior statutory usage, term of art, ordinary meaning, specialized language, dictionary meaning, etc.)

Solid advice, thanks! The trouble I'm really having with the class, which many others are having as well, is how each piece fits into the big picture. We are learning a lot of new concepts but I don't know where or how they fit in. We recently finished Chevron so it's coming together a whole lot more, but its still difficult to see the big picture.

Everyone who takes LegReg, even from the authors of the casebook, are with you on this. More than other classes, it really doesn't come together until you've finished with class and are organizing everything. You'll end up really liking statutory interpretation because it's much clearer and easier than the admin side. Keep the two halves of the class separate in your head and outline that way too. There are interpretation issues in the admin side, but just think [run statutory interpretation analysis] when it comes up. For the admin side, the cases are kind of a mess, especially in the Chevron/MCI/Brown+Williamson/State Farm group. Just outline each case and highlight the major arguments of the majority opinion, then apply those arguments to the fact pattern. It seems daunting because one case doesn't stand for one rule, done and done, they all interact; but the more linear you can make it (and you really can do this), the better off you'll be on test day.

For example:

Chevron STEP I: [normal statutory interpretation], plug into MCI and B+W
Chevron STEP II: STate farm/hard look--just see if the agency has done what the Court said it shouldn't (failed to consider an "important" aspect of the problem, relied on factors Congress didn't "intend" for it to consider, etc.). The Court was just bullshitting anyway, so you can too, a bit.

[Thedude737]

I'm glad I'm not the only one. Thanks again for the excellent tips.

"For the admin side, the cases are kind of a mess, especially in the Chevron/MCI/Brown+Williamson/State Farm group."

They are SUCH a disaster and the professor is stressing we know the dissents and concurrences for all of those cases and how they interact with each other. The only saving grace is that there are so few cases.

[foxtrottortxof]

The other advice I'd give is that for LegReg, because it's particularly disorganized, you really have to put in the heavy lifting before the test. No one is going to give you points for figuring out something in 30 minutes during the test that you could have ironed out before it. You'll get the high-hanging fruit by being super prepared more so, I think, in LegReg than in other first year classes (ok maybe excluding servitudes/covenants in Property and Twombly/Iqbal in CivPro).

[ph14]

The other advice I'd give is that for LegReg, because it's particularly disorganized, you really have to put in the heavy lifting before the test. No one is going to give you points for figuring out something in 30 minutes during the test that you could have ironed out before it. You'll get the high-hanging fruit by being super prepared more so, I think, in LegReg than in other first year classes (ok maybe excluding servitudes/covenants in Property and Twombly/Iqbal in CivPro).

What's complicated about Twombly? Isn't that just the "plausible" standard?

Any advice on doing the heavy lifting before the exam?

[foxtrottortxof]

Really digging into a Twombly/Iqbal analysis is quite difficult, given the slippery language of the Court. "Plausible" is actually some weird combination of "reasonable," "natural," "obvious," "probable," "consistent with," etc. It's fine from 30,000 feet, but gets quite murky once you get closer. Our prof really spent a lot of time on it, and wrote some killer fact patterns that took advantage of the ambiguities, so your prof may be different.

Well, for my Manning exam, I actually wrote out large portions of it beforehand and retyped it into the exam, but only because his tests are super repetitive. What I mean is getting your analysis totally organized beforehand. Have a roadmap to plug the hypo into, essentially, not just a summary of the information in the course.

For example, for removal cases, a part of my outline looked like this:

1. How much control does the President still have?
a. Degree of restriction
i. Morrison: can remove the IC for not competently performing functions = const.
ii. Myers: the statute gave the Senate a role in removal decisions (Humphreys did not)
iii. Humphrey’s: ‘inefficiency, neglect of duty, or malfeasance in office” essentially a “good cause” restriction = constitutional restriction (though perhaps for other reasons (quasi-leg/jud))
iv. Bowsher: “disability, inefficiency, neglect of duty, malfeaseance or felony or conduct involving moral turpitude” essentially “good cause” was “very broad,” and “could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will”
vi. Free Enterprise: two layers is too much, “good cause” = unusually strict
b. Does “good cause” allow President to remove for a reasonable disagreement over the relevant law?

I would just compare this to the fact pattern and analogize if relevant. The wrong way, in other words, would be to organize by cases rather than by the path of your analysis on the test.