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American LawAn Introduction$

Lawrence M. Friedman and Grant M. Hayden

Print publication date: 2017

Print ISBN-13: 9780190460587

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780190460587.001.0001

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The Structure of American Law: Statutes and Statute Makers

The Structure of American Law: Statutes and Statute Makers

Chapter:
(p.85) 5 The Structure of American Law: Statutes and Statute Makers
Source:
American Law
Author(s):

Lawrence M. Friedman

Grant M. Hayden

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190460587.003.0005

Abstract and Keywords

This chapter examines the roles of legislators and statutes in the American legal system. It begins by describing the structure of both federal and state legislative bodies, as well as the role of direct democracy. It examines the legislative output, and the history and impact of the uniform laws movement. It looks at the form and content of typical statutes, and how statutory language is interpreted by courts, including the use of textualism, canons of construction, and legislative history. Finally, the chapter examines the process of legislative decisionmaking.

Keywords:   legislatures, legislation, statutes, direct democracy, uniform laws, statutory interpretation, legislative history, legislative decisionmaking

COURTS ARE PROBABLY the best-known legal institution in our society, except perhaps for the police. But they are not necessarily the most powerful. One classical and durable legal theory has always insisted that courts have no right or power to make new law. They can only “find” law, or at best apply old law to new situations. It is the legislatures that have the right to make law, boldly and openly. Indeed, this is their job: they “pass laws.” Yet students in law schools in the United States, or who study law and legal process as undergraduates, focus largely on the courts (including the way in which courts do make law, despite the theory). Legal education tends to pay less attention to legislative bodies—Congress, state legislatures, city councils. It also neglects administrative agencies.

Yet the legislative branch is a tremendous presence in society and in the legal system. It is part of the bulk and body of Leviathan. There are vast numbers of lawmaking bodies, all up and down the land. As with the courts, we can imagine them arranged in a kind of pyramid. At the base of the pyramid, in the typical state, are the lawmaking organs of local government. In California alone, there are more than five thousand local bodies with some lawmaking or rulemaking power. These include city councils, county boards, boards of supervisors, and thousands of special-purpose bodies. There are fifty-eight counties in California (San Francisco is specially classified as a “city-county”) and 448 cities.1 There is also a patchwork quilt of over a thousand school districts2 and, as of 2012, 4,711 special districts in charge of everything from parks, water, and power to mosquitoes, sewers, and cemeteries.3

(p.86) One could quibble about whether these are all really legislative bodies, but they all have one thing in common: it is part of their business to establish general rules. This is, of course, obvious for legislatures, which churn out “laws” or “statutes”; towns and cities produce “ordinances.” But park districts, transit authorities, sewer districts, and so on also make rules that are binding within their own small orbits of power.

The state legislature sits at the top of the pyramid in California. It is made up of two houses, a senate and an assembly. Every state has a legislature, and in every state except Nebraska the legislature is bicameral, like California’s—that is, there are two houses, an upper and a lower. California is divided into legislative “districts,” which elect senators and assemblymembers. At one time, senators were elected more or less on a county basis. One senator represented the millions of people in Los Angeles County; at the same time, a few thousand voters in the high Sierra counties had a senator all to themselves. The U.S. Supreme Court put an end to this; it declared most forms of “malapportionment” illegal in a series of cases that began with Baker v. Carr.4 Today, all senatorial districts in California are more or less equal in population.

While legislative bodies in California have been described as forming a kind of pyramid, like the courts, the analogy is somewhat misleading. The organization is much looser: there is no such thing as an “appeal” from the city of Fresno, California, to the legislature, or from Yolo County to the legislature, or from the city of Hollister, California, to the county of San Benito. A citizen can, of course, complain that a city or town has overstepped its legal powers. But this complaint need not go to the legislature, and normally would not. It would most likely go to the courts.

Still, in another respect, legislative control over cities, counties, and towns goes far beyond the control that a high court exercises over lower courts. The legislature is in theory totally supreme. It can completely change the laws about towns and counties. It can shift boundary lines or add new counties. It can charter cities, amend charters, or take charters away. It could even abolish some local governments. In practice, the legislature stays out of most local affairs. But the state capital does have the last word; it is politics, not legal structure, that protects cities and counties from massive change from above.

In many states, ordinary people can directly participate in the legislative process through an initiative, referendum, or recall. An initiative is where a statute or constitutional amendment is placed on the ballot and voted upon by the public, completely bypassing the state legislature. A referendum is where a legislative enactment must be approved by the voters before it becomes effective. A recall allows voters to remove a state official from office before the end of his or her term. All three forms of direct democracy, and their variations, were introduced into state constitutions (mostly in western states) during the Populist and Progressive eras in late nineteenth and early twentieth century. As of this writing, eighteen states permit recall of a state official, twenty-four states have an initiative process, and all fifty states have some form of referendum.5 But until the late 1970s, they did not play a significant role in state lawmaking.6

(p.87) All three forms of direct democracy were viewed as a way to give a voice to ordinary people; to circumvent state legislatures thought to be dominated by special, moneyed interests (or just outright corrupt). Whether they have been successful in doing so remains an open question. Critics of direct democracy point to several shortcomings of the process.7 They believe, for example, that it may lead to shortsighted decisionmaking, such as when Californians passed Proposition 13 in 1978, capping property taxes and robbing their (then) first-rate system of public education of necessary funding.8 They claim that the only “people” given a voice through the modern initiative process are those with enough money to collect the thousands (or, in California, hundreds of thousands) of signatures required to get a proposal on the ballot and fund a modern campaign for its passage.9 (It now costs around $3 million just to get a proposition on the ballot in California.)10 Initiatives also suffer from being all-or-nothing propositions—they don’t go through the give and take of the legislative process that may accommodate particular interests or make a law more workable. Supporters, though, point out that most of the really awful initiatives are rejected by voters or, if they’re approved, rejected by the courts, and point to a number of important reforms that could have been accomplished only through direct democracy.11 With the passage of Proposition 11 in 2008 and Proposition 20 in 2010, for example, California turned over the highly politicized process of redistricting state and congressional districts to a nonpartisan Citizens Redistricting Commission.12 These and other reforms like them are consistent with the original purpose of making an end run around self-interested state legislators. And, whatever their downsides, people really seem to like the idea of direct democracy, at least in the abstract, so these devices are likely to be with us into the foreseeable future.

We live, of course, in a federal system. There is a national legislature, too: Congress. It, too, is divided into an upper house (the Senate) and a lower house (the House of Representatives). The House is elected on a population basis, but every state is entitled to at least one representative, no matter how tiny its population. There are 435 members, or roughly one for every 700,000 people. There are one hundred senators; each state has two, regardless of the size of the state or its population. California, with over 38 million people, has two senators; so do states with fewer than a million people, like Wyoming, Alaska, and Vermont. This scheme was written into the Constitution (in fact, it is currently the only provision that cannot be amended, without a state’s consent, under the Constitution’s own terms)13 and is immune to Baker v. Carr.

The legislative system, like the rest of our legal structure, is influenced by federalism and, more significantly, by the American habit of decentralization. Voters take it for granted that the people they elect represent localities and local interests. We do not elect senators or representatives “at large.” Members of Congress must please the people in their districts, or they will find themselves out of a job. Also, in the states, and in most cities, each lawmaker is elected from a particular district, and must be a resident of that district.

(p.88) This is not the case in England, for example; a member of Parliament for East London need not live there at all. The American system struck James Bryce (who wrote a classic description of American government in the late nineteenth century) as plainly deficient. It meant that “inferior” men would inevitably sit in Congress: “There are many parts of the country which do not grow statesmen, where nobody … is to be found above a moderate level of political capacity,” he felt. It was his opinion that men of “marked ability and zeal” were “produced chiefly in the great cities of the older States.”14 This sounds snobbish and wrong to American ears—the two presidential candidates in 1996, for example, President Bill Clinton and Senator Bob Dole, both came from small towns in small states (Arkansas and Kansas); both, whatever else one might say about them, were men of “marked ability and zeal.” Still, Bryce had a kind of point. The system tends to send men and women to Congress (and to state capitals like Albany and Sacramento and to city halls) who lack the “big picture”; they think first and last of the wants and needs of their own little districts. Indeed, they have to.

It is easy to think of legislatures and courts as alternative lawmakers, or even as rivals. In some ways they are. But in our tradition, legislatures do many things that courts cannot do at all, or do only poorly. Legislatures can impose taxes and can spend money, which courts cannot really do, at least not directly. Courts respond to particular cases, in which John Smith sues Mary Jones, or the Acme Toothpick Company sues the city of Little Rock. In making a decision, an appeals court may lay down a general rule; but even so, the rule is supposed to be limited to the class of cases that Smith v. Jones represents.

Of course, it is anybody’s guess how broad that category is. But in theory, anything that goes beyond the case is “dictum” (incidental talk) and is not binding on later courts. Whatever the theory, courts do act with caution most of the time. They do not presume to lay down minute, specific, detailed regulations. When a court hears a zoning case that turns on whether a gas station can be lawfully opened for business on the corner of Oak and Elm, the court may think the whole zoning ordinance or plan badly needs redoing, but it will not assume it has the right or the power to redo it on its own. Nor do courts change the speed limit or adjust parking fines; they do not generate systems of traffic rules or propose a list of chemical additives that can safely be used to make chicken soup yellow. Courts, in general, do not propose specific quantitative measures. They might (for example) decide that a tax rate is, for some reason, illegal or unconstitutional; but they will not suggest what the right rate might be. That is a job for the legislature. In the opinion of some critics, courts have strayed far from their classic preserves; they are, it is said, meddling in affairs that should not concern them, and crossing the line that sets them apart from the legislature and the legislative function. The point is controversial. Nonetheless, we think it is fair to say that the basic boundary between courts and legislative bodies still, in general, remains, and holds fast.

(p.89) The Legislative Output

The sheer volume of work done by legislatures, in the mass, is growing by leaps and bounds. This fact seems crystal clear, though there are few systematic studies of legislative output and even fewer on the output of city councils and other similar bodies. Today, in a typical biennial session, over six thousand bills are introduced in the California legislature.15 The statute book of a typical state in the mid-nineteenth century consisted of one fat volume; in other words, all the statutes in force in, say, Michigan or Indiana, were gathered together in a single thick book. Today, the collected statutes of any state, even a small state, will be ten or twenty times that size.

The reasons are not difficult to find. This is a complex society, and governing it calls for many detailed rules. New technology tends to bring new law. Consider, for example, how much law is on the books because of, or about, the automobile—traffic rules, speed limits, driver’s licenses, and so on. It may be true that courts have sometimes fudged the borders between their work and that of legislatures; but it is undeniable that legislatures have stepped in to regulate matters that were historically the turf of common-law courts. For example, there was a vast body of law (and litigation) on industrial accidents in the nineteenth century; the courts created and developed almost all of the rules. Around the time of the First World War, the states began to pass workers’ compensation laws, which covered most of this field and basically changed the rules of the game.16

The change was, of course, not just a matter of taste. The courts had developed rules that were for the most part vague and general. The new statutes were precise and detailed. For example, in the Idaho statute (passed in 1917), a worker who lost his “great toe at the proximal joint” in a work accident would receive 55 percent of his average weekly wage (but not more than $12 a week) for fifteen weeks. It is exactly this kind of precision that goes beyond the traditional power of courts. At any rate, though an immense body of case law on workers’ compensation has accumulated in the last eighty years or so, the basic scheme operates in a routine and administrative way, under ground rules and schedules set up by the legislature. Even court cases on the subject use the statute as their starting point.

Codes and Uniform Laws

The common-law system is inherently messy; to understand what the law is, one must (in theory) rummage about in volume after volume of published cases. Judge-made law in the United States, with its fifty states, is especially ragged, nonuniform, inconsistent. A code—a statute—setting out the rules of law is much neater and more concise. Perhaps it is fairer too, since it may make clear, in advance, exactly what the law is, exactly what rules a citizen has to follow. As the English philosopher Jeremy Bentham pointed out in the early nineteenth century, common-law judges made law “as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and (p.90) then you beat him for it.”17 Civil-law systems, with their clean, logical codes, at least seem much more rational, more organized, than the common law.

In the nineteenth century, some lawyers and legal scholars in the United States, too, were intrigued by the idea of codifying the law—taking excess power away from judges and setting out the basic rules of law in modern codes. The idea is associated above all with David Dudley Field, a New York lawyer (1805–94). Field drafted or supervised a whole series of codes. The most successful was the Code of Civil Procedure, also known as the Field Code. New York adopted this code in 1848. It merged law and equity into a single system and in other ways, too, simplified and modernized pleading and process in court, though New York later drastically amended its code. Moreover, New York turned down Field’s other codes, which dealt with substance. These codes, orphaned in New York, found homes in some of the western states—California and Montana, for example. Even in these states, lawyers were not trained in habits of reverence for statutes; the attitude of judges and lawyers toward the civil code of California is far different from the attitude of French judges and lawyers toward their civil code.

At the end of the nineteenth century, another strong but quite different codification movement arose. This movement had its greatest successes with regard to commercial law. Here the need was very great. The United States had entered the age of railroads, telephones, telegraph, interstate business. Goods and labor moved freely across state lines; laws did not. A company that did business in many states or that sold its goods in many states had to try somehow to comply with a whole host of slightly different laws.

The uniform-laws movement was spearheaded by prominent lawyers and legal scholars, but it succeeded, no doubt, because the business community felt a need for it. In 1892, a Conference of Commissioners on Uniform State Laws was founded. The commissioners were appointed by the governors of the states. The first “uniform” law suggested by the conference was the Negotiable Instruments Law (1896), dealing with checks, bills of exchange, and promissory notes. It was quite successful; every state eventually adopted it. The Uniform Sales Act (1906) won thirty-four adoptions. The commissioners continued their labors and drafted many other laws, some of which also proved popular. The Uniform Simultaneous Death Act is one example. This statute dealt with the mess that results when, for example, husband and wife die together in a common wreck and their estates are entangled with each other. Most states adopted this uniform act.

But no state is forced to enact a “uniform” law, and in practice the laws may not be quite so uniform as they look in print. Interpretations can vary from state to state, and local amendments are always possible. Undaunted, the Commissioners on Uniform State Laws, including many leading lawyers and legal scholars, took on, in the 1940s and 1950s, a complex task: drafting (and selling) a whole commercial code. One of the leaders in this movement was Karl Llewellyn, one of the country’s foremost legal scholars. The Uniform Commercial Code, originally divided into ten separate “Articles” or divisions (there are now eleven), goes over ground covered by at least half a dozen older (p.91) laws. It replaces the Negotiable Instruments Law, the Sales Act, and others of the older “uniform” laws.

The code got off to a rocky start and met with considerable sales resistance. Massachusetts and Pennsylvania adopted it, however, and finally, after intensive efforts, it took off everywhere. Louisiana, our only civil-law state, was the last holdout; but even it gave in and adopted the code in 1990 (except for one Article). Still, each state is formally free (if it wishes) to repeal or change the code. The code is a good example of how it is possible to come close to legal unity in this enormous country, simply through state cooperation and parallelism. But obviously this sort of uniformity can never be as stable and complete as the uniformity that comes from a single central government.

Statutes: Form and Content

It is hard to generalize about the form or content of statutes. A statute can be about any subject that law touches on, which means, in practice, anything. The form, too, is infinitely various. Usually we think of statutes as being general directives, unlike decisions, which apply to particular cases. It is a statute that makes burglary a crime and fixes a range of punishment, but whether Joe Doakes, a particular burglar, goes to jail is a decision made by judges, juries, and others, not by a legislature.

But even the statement that statutes set out general directives is only partly right. Not all statutes lay down rules that apply to whole classes of cases. Congress, for example, still passes a few so-called private laws, many of which apply to a single person. In 2006, Congress passed Private Law 109-1, the Betty Dick Residence Protection Act, which allowed Mrs. Dick, an eighty-three-year-old widow, to remain in her summer cabin within the boundaries of Rocky Mountain National Park “for the remainder of her natural life.”18 Private laws have been used to make an end run around strict immigration laws, for favored individuals. For example, Private Law 112-1, passed in 2012, provided that “Sopuruchi Chukwueke shall be deemed to have been lawfully admitted to, and remained in, the United States, and shall be eligible for adjustment of status to that of an alien lawfully admitted for permanent residence under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255)… .”19 Mr. Chukwueke was abandoned at an orphanage at the age of fifteen in Nigeria due to a harsh medical condition, similar to “elephant man’s disease,” that caused large tumors to distort one side of his face. He was rescued by a missionary nun and brought to the United States for treatment; he graduated from high school and college, and applied to medical school. But his visa that allowed him to travel to the United States ten years earlier had expired. Chukwueke faced deportation; but Private Law 112-1 remedied that; it allowed him to apply for legal permanent residence.

Private laws were once common in state legislatures, too: states used them to charter corporations, to settle minor property disputes, to straighten out administrative messes, and even to grant divorces. In 1850, for example, the Alabama legislature passed a law (p.92) changing the name of Matthew Robinson McClung to Matthew McClung Robinson.20 Another private law allowed a certain John B. Moore (“who has been engaged in practicing medicine nine years … and is considered skillful and useful”) to continue as a doctor, even though he had no license.21 But private acts came to demand too much legislative time, and were open to corruption besides. After the Civil War, state constitutions began to outlaw the practice. The Illinois constitution of 1870 forbade “local or special laws” and provided that “in all cases where a general law can be made applicable, no special law shall be enacted.”22

The output of Congress or a state legislature, in any session, consists of dozens and dozens of statutes. Some are long, complicated, and important; some are short and succinct; some may change a comma or two or make some trivial amendment to an older law. Some statutes lay down broad principles that courts or agencies will have to flesh out and interpret; other laws contain detailed regulations, dotting every i and crossing every t.

The Internal Revenue Code (the federal tax law) is probably the most complicated law (or system of laws) in the United States. Some of its provisions are broad and general; other parts of the code go into incredible detail. It is also almost totally unreadable—a dark, impenetrable jungle of jargon and bewildering cross-references, which only specialists dare tackle, and even they have plenty of trouble. Here is a small sample of its deathless prose. This is from Section 170 of the code, a long and involute section about income-tax deductions for gifts to charity. One part of this section puts a limit on corporate gifts to charity; in any year, the limit is 10 percent of the corporation’s net income. What if a corporation gives more? Here is the crystal-clear answer:

Any contribution made by a corporation in a taxable year … in excess of the amount deductible for such year … shall be deductible for each of the 5 succeeding taxable years in order of time, but only to the extent of the lesser of the two following amounts: (i) the excess of the maximum amount deductible for such succeeding taxable year under subsection (b)(2)(A) over the sum of the contributions made in such year plus the aggregate of the excess contributions which were made in taxable years before the contribution year and which are deductible under this subparagraph for such succeeding taxable year; or (ii) in the case of the first succeeding taxable year, the amount of such excess contribution, and in the case of the second, third, fourth, or fifth succeeding taxable year, the portion of such excess contribution not deductible under this subparagraph for any taxable year intervening between the contribution year and such succeeding taxable year.23

At the other end of the spectrum are laws that delegate broad authority to the president or some agency, or that speak in very vague, general terms. The famous Sherman Act, passed by Congress in 1890, is the fountainhead of federal antitrust law—the branch of law that deals with monopoly and restraints on trade. The Sherman Act is only (p.93) a page or so long. One key provision simply outlaws “every contract, combination … or conspiracy, in restraint of trade”; another provides that everyone who “shall monopolize, or attempt to monopolize” any part of interstate commerce is guilty of a misdemeanor. Obviously, this leaves many questions unanswered. What is a monopoly? What does it mean to “restrain” trade? If a company controls 56 percent of the market in lead pencils, is it “monopolizing” this market? Anyway, does the pencil business constitute a “market”?

The act is not very specific, to say the least. Nor does it set up any special agency or body to run the fight against “trusts” and to decide how the law should be interpreted and enforced. In this regard, the Sherman Act is quite different from other regulatory statutes, particularly later ones. But the law that created the Federal Communications Commission is also marvelously vague. The commission has power to license radio and television stations; the only standard mentioned in the law is “public convenience, interest, or necessity.”24 This means nothing much in itself, but at least we know that the commission will be in charge. It can put some flesh on the bare bones of the statute. It would have been nice if Congress had given the commission some guidance; Congress chose not to.

As far as the Sherman Act is concerned, policy is set by the attorney general, the Justice Department, and the lower courts. They have the job of deciding what to consider a violation, whom to prosecute, whom to let alone. The attorney general and the Justice Department make these decisions in the first instance; the federal courts accept or reject the government’s line. More than one hundred years have gone by since the Sherman Act was passed; a huge body of law has accumulated. Without the statute, this body of law would not exist, yet its exact shape owes relatively little to the precise (or imprecise) words of the statute.

Why should Congress give away so much power? Why should it delegate its authority to other agencies? Much of the development makes sense simply in terms of the scope of government. Congress is made up of only so many men and women, and there are only so many hours in the day. Congress has neither the time nor the know-how to handle every detail that modern law requires. For example, Congress decided, in the Pure Food Law of 1906, to forbid the manufacture and sale of adulterated food. This is the general principle. But it is the Food and Drug Administration (FDA) that makes specific choices. The FDA, not Congress, decides how much butterfat must be in ice cream before you can call it proper ice cream, and what chemicals can or cannot be used to make cucumbers green and shiny in the stores; it is the FDA that decides whether a drug to deal with arthritis can or cannot be marketed. It is the FDA that hires chemists and doctors and puts them to work on these problems. Deciding questions about butterfat and additives and arthritis drugs is the agency’s job. Congress has other things to do.

This is not the only reason for delegation. Delegation is also a form of delay, a way of dodging or compromising an issue. In the background of the Sherman Act, in the late nineteenth century, was a tremendous public uproar over the issue of “trusts.” The trusts were huge industrial combines; the biggest of all was the Standard Oil empire of (p.94) John D. Rockefeller, which controlled virtually the entire industry. Congress had to do something to calm the public, which was thoroughly aroused. But it did not quite know what to do, and big business, of course, was a powerful political force on the other side. Congress responded to these conflicting pressures by passing a broad, sweeping act, marvelously vague. This sent a soothing message to the public: we have taken action against the trusts. At the same time, the act set up no real machinery for carrying out the policies it so broadly expressed. In this way, Congress dodged the long-term issue and passed the buck to the executive branch and the courts.25

Every important law or ordinance, whether passed by Congress or by a state legislature or city council, is its own special blend of specific detail and broad, vague principle. Some, of course, leave out the detail altogether; some leave out the big, broad brushstrokes. Still others mix them together. Ohio—to take one example out of thousands—has a food, drug, and cosmetic law that prohibits the sale of “adulterated” food. What does the word “adulterated” mean? There is a long chain of definitions. Some are quite general: food is adulterated if any “valuable constituent” has been “omitted.” But the statute also gets down to minute detail: candy is adulterated if it has “any alcohol or nonnutritive article or substance other than harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one percent,” and so on.26

Why are statutes written one way or the other? Who makes these decisions and why? The mixture of detail or nondetail depends in each case on the history and politics of the particular law. Beyond this, it is hard to say anything more definite, except to point out that “historical accident” has almost nothing to do with the matter, nor is it a mere question of the techniques of draftsmanship. Legislatures do not pass laws as academic exercises or on a whim, but because somebody is pushing them; the social forces that lie behind any particular statute explain its form as well as its substance.

Statutes and Their Interpretation

A statute is, of course, a kind of command. Legislatures pass them, but they are not in the business of enforcement or interpretation. These jobs are left for others to do. Every statute, then, has a double message. In the first place, the statute delivers to the public (or some part of it) a statement of dos or don’ts, or rights and privileges. In the second place, the statute also contains a message to some legal authority, giving instructions about carrying out the law. The second message may be, and often is, implicit; the statute does not necessarily say it in so many words.

For example, the Indiana penal code (section 35-42-5-1) provides that if a person intentionally takes “property from another person” with force or threat of force, the crime called robbery has been committed. A convicted robber can be sent to prison. This section of the penal code is, first of all, a message to the general public, warning people (if they need the warning) that robbery is forbidden and can be punished. At the same time, the statute is a message to district attorneys, police officers, judges, jurors, prison (p.95) wardens, and a whole host of other officials, authorizing them to do their job with regard to robbers. None of these officials are mentioned explicitly, in this particular law. Other Indiana laws deal with the structure of the criminal justice system, and the code section on robbery implies and assumes these other provisions. If we want to know whether the robbery statute “works” or not, we have to examine the impact of both of its messages. Is it getting through to robbers and potential robbers? And is it also getting through to law-enforcement officials? Are they doing their job of enforcement? These two impact questions are not, of course, unrelated to each other.

This is a simple example, because the robbery statute is itself relatively simple. The wording is not particularly difficult. A street holdup is an obvious case of robbery. There may be borderline situations, but the main thrust of the law is clear to anyone who reads it. Moreover, the layperson does not have to read it. People do not go around studying the text of the penal code; in this case, they know that robbery is a crime. The penal code itself rests on well-known, basic norms of American culture. The other branch of the message is also fairly clear. Dealing with robbers is part of the normal, ordinary work of police, judges, prison people, and so on.

Many of the thousands of statutes in the typical statute book are much more problematic, as far as their meaning is concerned: they are ambiguous, or confused, or novel, or very complicated, or extremely vague. We have seen some examples: the Internal Revenue Code is an example of enormous complexity, the Sherman Act an example of great vagueness. Even “clear” statutes run into problems of interpretation. Life is full of surprises, and situations often come up that do not quite fit the statute—but then again maybe they do. In other words, there are constant problems about what a statute actually says, how to interpret it if there are two conflicting meanings, and what to do when we are not sure that it covers some special situation.

Who decides what a law really means? A lawyer would answer, almost automatically: the courts. In a difficult case, it is true, courts have the last word in deciding on the meaning of a law. When Congress enacted Title VII of the Civil Rights Act of 1964, did the legislators mean only to get rid of discrimination against black people and other minorities? Could white people claim the protection of the civil-rights laws? If so, could they do so even in cases where they were challenging more “benign” forms of discrimination, such as affirmative action programs? The background was ambiguous, and the words of the statute were no help in the toughest cases.

The Supreme Court first tackled this question in 1976. In McDonald v. Santa Fe Trail Transportation Company,27 two white men and a black man had stolen antifreeze from their employer, but the employer only fired the white men. They sued, but the trial court judge said they had no case: the Civil Rights Act, in that judge’s opinion, was only designed to protect the rights of racial minorities. The Supreme Court disagreed; Title VII protected members of all races. The statute just said “race,” not any particular race, and the legislative history had plenty of language that supported a reading of the statute that applied to people of all races. But what about white (or male) employees who felt (p.96) they got caught on the wrong side of an affirmative action program designed to remedy past discrimination against blacks (or women)? In United Steelworkers v. Weber,28 a union had entered into a collective bargaining agreement with Kaiser Aluminum to reserve for blacks half of all new openings in craft-training programs. A white worker complained. In a split decision, the Court upheld the plan and ruled that the Civil Rights Act did not forbid this arrangement. Affirmative action programs, at least those that met certain conditions, were an exception to the general rule against discrimination on the basis of race.

This was an instance of “interpretation”—in theory, at least, a search for a meaning that is already in the statute. It is, in theory, not a question of the justices’ values, ideas, beliefs, or preferences. This theory seems naive, to say the least. The Court that decided Weber was much more open to “benign” discrimination than the Court a few decades later; backlash and political change had had its impact on the appointment process, and a (narrow) majority of the Court, in a 1995 decision, expressed the view that all “race-based action,” at least by “state and local governments,” was deeply suspect, and almost certainly unconstitutional.29 Later cases subjected affirmative action programs run by colleges and universities to a high level of scrutiny and doubt.30 That the attitudes and values of the judges have an impact on the “interpretation” (of statutes or constitutional texts) seems undeniable. Meanwhile, “affirmative action” hangs in the balance. The Weber decision has never been officially overruled. The Supreme Court has shown distaste at times for race-conscious decisionmaking; but has thus far drawn back from a decisive vote against it, as the decision in a case in 2016, involving the University of Texas, suggests.

In a real sense, then, when courts “interpret” the statutes, they are actually making law. A law that has not been authoritatively interpreted—that has never come under the gimlet eye of the judges—is, in a sense, incomplete, inchoate; its meaning is clouded. Many lawyers would nod their heads in agreement at this last statement. But we have to be careful not to let the point distort our picture of the legal process at work. Of the thousands of laws and amendments to laws that pour out of legislative chambers every year, only a tiny (though important) minority ever go to court for interpretation. The rest are “interpreted” (if at all) by other people. All the people who handle the law in any way, including the police, officials of the Social Security Administration, and, yes, members of the general public, interpret the law, whether they know it or not. Lawyers play a key role in this process. Take, for example, the murky provision of the Internal Revenue Code about deductions for charity, which we quoted before. This message is much too complicated, much too “legal,” for the general public. Somebody else has to receive the message, digest it, store it up, and feed it out in an easier form. This is the tax lawyers’ job.

The lawyers do not do it alone. In their offices, they gather material from law-book companies, commercial tax services, trade associations, and so on, which help keep them current. Similarly, there are people working for any big company or any big institution (a university, a hospital) who have the job of sifting through the piles of matter that flow (p.97) into the institution, all the laws, rules, and regulations that affect what they do. These staff people, too, digest law and store it in a form that their organizations can use. They, too, interpret the law.

The statutes that courts interpret, of course, are not a random selection of all statutes. Courts decide cases, so these statutes are involved in some controversy that has ended up in court. The issues raised tend to be the most hotly controverted. This is probably why they got to the court in the first place.

How does a court decide what a statute means? Courts have been working with statutes for centuries. They have built up a body of doctrine on “construction” (interpretation) of statutes. They have, in other words, generated rules—or, more realistically, guidelines, rules of thumb—about the interpretation of laws. Some of these rules are in the form of “maxims” or “canons of construction”—slogans or sayings that sum up modes of interpretation in a pithy sentence or two.

There is, for example, one maxim to the effect that penal laws should be “strictly construed.” This means that when a law makes behavior criminal, courts should interpret the law quite narrowly. They should stick as close as they can to the literal meaning of the words. They should avoid any interpretation that would apply the law to conduct that is not clearly, unmistakably covered by the text of the law. Otherwise, we might punish people without giving them fair warning in advance that their behavior is a crime.

Put this way, the idea is just and sensible. In practice, the notion can easily be carried too far. In one famous case,31 decided in 1931, the U.S. Supreme Court had to construe the National Motor Vehicle Theft Act of 1919. The law defined a motor vehicle as an “automobile, automobile truck … motor cycle, or any other self-propelled vehicle not designed for running on rails.” Congress made it a crime to cross state lines in such a vehicle “knowing the same to have been stolen.” Defendant McBoyle flew a stolen airplane from Illinois to Oklahoma. Had McBoyle violated the law of 1919? An airplane is a vehicle, it has a motor, and it definitely does not run on rails. But the Supreme Court set McBoyle free. A penal law must give “fair warning,” in “language that the common world will understand.” The words of the statute were ones that would “evoke in the common mind only the picture of vehicles moving on land.” It would not be fair (said the court) to extend this law to airplanes. McBoyle went unpunished, and Congress amended the law in 1945 to include aircraft.32

If this strikes you as far-fetched, you are not alone. Did McBoyle really think it wasn’t a crime to steal an airplane? Presumably he did not know it was a federal crime; but did he know there was a federal law about taking “vehicles” (whatever that meant) across state lines? Not all courts are such sticklers, and some state laws tell them explicitly not to be. For example, section 4 of the California penal code states baldly that California does not follow the common-law rule requiring penal statutes to be “strictly construed.” All criminal laws are rather to be interpreted “according to the fair import of their terms, with a view to effect its objects and to promote justice.”

(p.98) According to another famous maxim, statutes in “derogation of the common law” must also be strictly construed. This does not have a very precise meaning, but it expresses an interesting bias. The bias is this: courts should look suspiciously at changes in law that come from legislatures instead of from the courts themselves. Historically, many courts indeed took a rather narrow, illiberal view of statutes. They looked on them as (in a sense) alien intruders, disturbing the beauty and symmetry of common law. This general habit of courts helps explain the rather peculiar style of American (and English) statutes. Many of these statutes are incredibly verbose, piling synonym on top of synonym. Here is a typical example:

All promises, agreements, notes, bills, bonds or other contracts, mortgages, or other securities, when the whole or part of the consideration thereof is for money or other valuable thing won or lost, laid, staked, or betted at or upon a game of any kind, or upon a horse race or cockfight, sport or pastime, or on a wager, or for the repayment of money lent or advanced at the time of a game, play, or wager, for the purpose of being laid, betted, staked, or wagered, are void.

This language comes from an Ohio statute, and all it means is that gambling contracts are void (that is, a court will not lift a finger to help either party collect or enforce them).33 Its essential meaning can be expressed in four words; about a dozen more might help to explain it a bit further. The code uses more than eighty separate words, all part of a single very long and difficult sentence. The drafters wrote as if they had to cover every possible crack or gap in meaning—as if the text were a small, leaky boat in a storm on a hostile sea. These precautions, these synonyms, these long legalisms, were presumably there to prevent courts from punching holes in the statute or changing little holes into big ones.

There are many other maxims or canons of interpretation. Some states list them as official and make them part of the statute books. Even when this is done, it is questionable whether the maxims are very effective, whether they are anything other than convenient excuses for courts to do more or less what they want to, in reading a statute. Karl Llewellyn, in a well-known essay, pointed out that most maxims have their countermaxims; these act more or less as escape hatches, so that a court can ignore whichever of the two it wishes and use its opposite instead. For example, according to one maxim, courts should interpret statutes in such a way as to give sense to every word or clause in the text. On the other hand, a court can (by another maxim) reject as “surplusage” words that are “inadvertently inserted” or “repugnant” to the rest of the statute. The two maxims seem rather inconsistent.34

Systematic information is lacking about the ways courts handle statutes in practice. Probably a great deal depends on the attitudes of judges toward the actual subject matter covered by the statute. Even the maxims make distinctions—for example, the maxim that criminal laws should be narrowly construed; there is no equivalent for laws about contracts or torts. In any event, courts do their “interpreting” within certain rather (p.99) definite limits. They can twist and pull a little, but they can hardly construe “black” to mean “white” or “up” to mean “down.” The words of a statute are not putty; they are more like a rubber sheet that gives a little here and there but cannot totally change shape. To “interpret” in such a way as to turn black into white or night into day would violate tradition and upset the judges’ own sense of their legitimate role.

As we said, “interpreting” a statute is not something a court decides to do on its own; it takes a case to do this, and that means at least some kind of dispute or controversy. It is also not true to say that that a statute has no real meaning unless and until a court tells us what it is. As we pointed out, most statutes are not interpreted by courts at all. Nonetheless, they may have a real operative meaning; the people who carry them out or who come under them grasp this meaning, and act accordingly.

When a statute does come before a court, to be interpreted, is there a right way and a wrong way to do the job? One obvious “right” way is to search, honestly, for the “true” or “real” meaning of the text. But does such a thing really exist? Often, to be sure, there is a literal meaning, but sometimes this makes no sense or leads to absurd results. Perhaps, then, the meaning of a statute has something to do with its purpose, with what the members of the legislature had in mind, or the reason why the statute was passed in the first place. This actually carries us only a little bit further. Legislative intent is a slippery concept. First of all, no one can actually read the minds of the legislators; second, there are too many minds to read—435 in the House of Representatives alone. Neither in theory nor in practice is it easy to find out the actual purpose or intention of a law. Indeed, for most legislative minds there may be nothing to read, even if we could get somehow inside the heads of members of Congress. Many members have never even looked at the bills they vote on; others may have only a faint idea of what was in them. Some vote out of party loyalty, others to do a favor to another legislator. Even those members who take an active part in writing some particular law, or arguing for it, or pushing it along, might have among them quite different, conflicting notions of the purpose and sense of the law.

When a person wants to know what a word or phrase means, she might consult a dictionary. Courts can do this too. The U.S. Supreme Court does this frequently—at least in recent years. The use of dictionary meanings was rare until the days of the Roberts Court. But in the 2008 to 2010 terms, fully a third of the cases involved citations to dictionaries.35 A recent high (or low) point occurred in a case where the Court, ironically enough, needed to interpret the term “interpreter” for the purposes of a federal statute that allowed “compensation of interpreters” as costs that could be awarded to prevailing parties.36 The majority consulted fourteen dictionaries in its opinion, ten general dictionaries and four legal dictionaries, to reach its conclusion that an “interpreter” was one who provided oral translations but not one who translated written materials. This was at odds with long-standing trial court practice, and with the reason behind providing interpreters to begin with—ensuring that both oral and written foreign language materials are accessible to everyone involved in a court case. But those considerations mattered less to the Court than how the dictionary (or, in this case, dictionaries) defined the word.

(p.100) Sometimes the Court uses a dictionary as a time machine to visit the period when a statute was passed in order to glimpse its “true” meaning. In the 1987 case, Saint Francis College v. Al-Khazraji,37 the plaintiff, a man from Iraq, claimed that he was denied tenure based on his Arab ancestry. He sued under section 1981 of the Civil Rights Act of 1866, a post–Civil War statute that prohibited race discrimination. The lower court rejected his claim, reasoning that discriminating against someone for being Arab was not race discrimination; Arabs, in that court’s opinion, were generally considered Caucasians. The Supreme Court rejected this view. Although more modern definitions of race may be based on biology or sociology, those definitions are irrelevant—the question is what people thought of race in the nineteenth century, when the statute was enacted. Turning to a collection of old dictionaries and encyclopedias, the Court discovered that race was then described in broader terms: one 1854 source referred to “various races such as Finns, gypsies, Basques, and Hebrews.”38 Race was more akin to modern notions of ethnicity, ancestry, or national origin, thus the Arab plaintiff had a claim for “race” discrimination under the terms of the old statute. Whether he would have had a case under more modern civil rights statutes—what, exactly, “race” means under the Civil Rights Act of 1964—is still an open question.

This rise in the use of dictionaries has been prompted, in part, by the rise in “textualism,” a tendency that elevates the plain meaning of a statute above all else. Turning to a dictionary seems purer, more objective, and less tainted by the biases that are thought to infect judicial decisionmaking. This veneer of objectivity, though, is belied by the fact that justices often cherry-pick definitions. If nothing else, the sheer number of dictionaries consulted shows that the justices are often shopping for definitions that support their points of view rather than the other way around.39

Not all cases or issues invoke deep feelings or ideology among the justices. And even when these are involved, a justice might begin by asking what the point of the statute was in the first place: what prompted the legislature to act. Important clues might be found in what is called “legislative history”: material, outside the text itself, that could shed light on what the text might mean. What were the events or situations that led to the introduction or drafting of the bill? We could also take a look at the various drafts and how they changed as the bill snaked its way through Congress; we can read committee reports and debates on and off the floor of the legislature; we can consider the words of experts and advocates who appeared before congressional committees—everything, in short, that happened up to the point where the president or the governor signed the bill into law.

In England, courts traditionally refused to pay attention to legislative history; they insisted on looking only at the text. Perhaps their hesitancy stems from differences in their legislative processes. In the United States, Congress makes extensive use of studies and reports; there are up to thirty-nine different types of sources of legislative history, including comments from the bill’s sponsors, materials from hearings, debates, advisory committee comments, House and Senate reports, conference reports, and even materials on prior versions of the bill and evidence of legislative acquiescence in an administrative interpretation of a statute.40 The United Kingdom, in contrast, uses a system (p.101) of legislative drafting that produces a much smaller and less informative set of materials. But there has been some international convergence on this issue in the last couple of decades. High British courts have begun, rather gingerly, to permit use of the more limited parliamentary material in certain situations—for example, where legislation is “ambiguous or obscure, or leads to an absurdity.”41

American doctrine has been much more receptive. Some judges have argued that background is important only when the text is ambiguous: if the law has a “plain meaning,” there is no reason to rummage around in the windy expanses of the Congressional Record, and so on. Many judges try to start with the plain meaning rule, but find that the meaning is not all that plain (even with the help of a dictionary or two). It is now standard practice to also use legislative history to interpret statutes. Take, for example, United Steelworkers v. Weber, the 1979 case on “benign” discrimination we have already cited. Here a white worker challenged an affirmative-action program for black workers; he claimed this was a form of race discrimination against whites. Justice Brennan, in his opinion, quoted extensively from the Congressional Record to drive home his points about the meaning of Title VII of the 1964 Civil Rights Act. Not to be outdone, the dissent of Justice Rehnquist quoted even more extensively, to make the very opposite point. In this case, as in so many, legislative history hardly leads to a single right answer.

State legislative history is often fairly skimpy; but Congress spews forth reams and reams of paper. In many cases, there is entirely too much history. There may be so many versions, drafts, debates, reports, messages, and so on that a judge can find material to support any interpretive position. The Weber case is a good example. But this is no real argument against the use of legislative history. As Professor Kenneth Davis has put it, that would be “a little like saying that we should not drill for oil because much of the drilling ends with dry holes. The important fact is that some of the drilling yields oil.”42

Nonetheless, the use of legislative history has not gone unchallenged—by some legal scholars, and by a few judges, including Justice Scalia of the U.S. Supreme Court. Scalia, in a case decided in 1993, excoriated the use of legislative history as “likely to confuse rather than to clarify”; he quoted a judge who compared the use of legislative history to “entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”43 Yet in that very year and indeed in subsequent decades, members of the Court poked around in legislative materials in virtually every case that involved a federal statute. Justice Scalia, however, continued to criticize the practice.

Legislative Decisionmaking

Just as there is a body of literature on decisionmaking in the courts, so there is a body of literature on the way legislatures make decisions. This literature is concerned, among other things, with the effect of public opinion (in general) on the legislative process, and (in particular) with the role of lobbyists and organized interest groups. The literature is (p.102) rich and complex, and cannot be summed up in any single, simple formula. A few points stand out.

First, most scholars agree that legislators, at least to some degree, behave in response to their constituents. They tend to do what the voters in their districts want, or at least those voters who write letters, donate money, or otherwise try to exert some pull. Legislators do not simply follow their own inner values. Of course, ideals and convictions are important to legislators; but a member of Congress or the state assembly knows that it could be fatal to get too far out of touch with the voters’ wishes; the member could be thrown out of office at the next election.

Second, what legislatures do reflects the social force exerted; in other words, we can explain output (legislation) through input (social pressure). The man or woman in the legislature is a medium, a conduit, not an independent force. There is, however, a good deal of controversy about the source of the pressure. Who is it that exerts the force? Moderates (and conservatives) tend to stress the “pluralism” of American political life. They do not claim that everybody in the country has an equal say, but they stress how many groups and how many interests get some response from the lawmakers. There is a good deal of popular rule, in other words. Legislators listen to many voices, demanding many different ends and means. The groups have to deal with each other, inside and outside the legislature; they have to bargain and compromise; no single group ever gets its way entirely. The very form of the government reinforces this system: there is no “single center of sovereign power”; rather, there are “multiple centers of power, none of which is or can be wholly sovereign.”44

But many scholars reject this image. They feel that it paints too rosy a picture. These critics argue that the rich and the powerful are, in practice, the only serious influences on major decisions; they are the only ones who can afford lobbyists, the only ones who can mount a real campaign to get results in Congress or a state legislature. Besides, campaigns themselves have become very expensive. Mitt Romney and Barack Obama raised over a billion dollars each to fund their 2012 presidential campaigns.45 Even candidates for lesser offices cannot survive without heaps of money to buy television time, to conduct polls, to print leaflets, to hire managers and staff, and so on. Only big interests have the financial power to make important contributions; this gives them a say in elections and in the behavior of legislators that the average person can never hope to have. The poor, the minorities, the unpopular are shut out of the process. So are such “diffuse” interests as those of consumers and pedestrians. Attempts to deal with this issue—to reduce the role of money in elections—have not been successful; and the Supreme Court has been downright hostile to any efforts at reform.46

The word “lobbyist” has, if not a sinister, at least a distasteful ring. Lobbyists are those who are paid by various interests to try to influence passage or defeat of legislation. In 1946, Congress attempted to rein in lobbyists, or at least make their work more transparent, with a law that required certain kinds of disclosure, but the law was narrowed by the Supreme Court and became largely irrelevant to the actual practice of lobbying. (p.103) Almost fifty years later, Congress tried again, and passed the Lobbying Disclosure Act of 1995, which requires lobbyists to register, disclose who they represent, and also reveal a good deal of financial information.47 Thousands of lobbyists have registered under this law, though there is good evidence that the actual number of people engaged in such activities under other guises—corporate government relations departments, trade associations, and the like—far exceed the number of registered lobbyists.48

Lobbyists claim, with some justice, that they do not deserve their shady reputation. Of course there have been corrupt lobbyists—lobbyists who used pressure or bribery to get their way. But in general lobbying is arguably a vital part of the democratic process. Lobbyists draft legislative proposals; mobilize public support or opposition to bills; and keep legislators informed of what is going on at the grass-roots level (or other levels). The Sierra Club has lobbyists; so do the National Rifle Association, the Japanese government, and Harvard University. In fact, like so many facets of law and government, lobbying is a complex phenomenon; it is neither all good nor all bad, and it is, in any event, deeply ingrained in the American tradition. Still, we do not have to demonize lobbying, or discount its value, to wonder about the role of money and power in the legislative process.

Studies of the legislative process emphasize the fact that votes on bills are not isolated acts. A legislature is an institution, a system; its members know each other, and they must learn to live and work with their colleagues. Congress is not “an anonymous group of men and women who occasionally meet to pass legislation”; on the contrary, it is a continuing body, with “an elaborate formal and informal structure, traditions, norms, and agreed-upon practices.”49 The same is true of state legislatures.

This means, for example, that to understand the legislative process, we have to understand the committee structure, seniority, the party system, and so on. We have to understand the structure of legislatures, and how it affects the work of the body. The Senate, for example, is usually a slower, more sedate, less ideological body than the House of Representatives; structure might account for some of this difference in legislative culture.

We must also realize that members do not deal with each single bill in isolation. Rather, they “deal” with each other; they trade votes, in subtle and not-so-subtle ways. There is a lot of open “logrolling,” especially in regard to “pork-barrel” bills—legislation about construction projects, irrigation works, dams, harbor improvements, research centers, and the like, to be located in local districts. That is, legislator A agrees to vote for a dam in B’s district, because B will vote for the harbor improvement in A’s district. More subtle, and more important, is what has been called “implicit” logrolling; vote trading that is less blatant, less open, but still part of the process of “getting along.”50 A legislator is always aware of other legislators (and of the president or governor) and is generally willing to accommodate others in exchange for goodwill or a helping hand, or at least a friendly hearing, on his or her issues. There are, of course, limits to how far a legislator can “deal.” Legislators must be careful not to deal themselves out of office.

(p.104) One would expect, then, in the light of all this, that any complex statute would turn out in the end to be some sort of compromise. It comes about after an intricate game of give-and-take in which legislators, nudged constantly at the elbow by constituents, play power poker with each other. Almost any big bill could serve as an example. The Patient Protection and Affordable Care Act51 (perhaps better known by its nickname “Obamacare”), which substantially overhauled the regulation of health care in the United States, reflected the influence of all the major players, including doctors, hospitals, drug companies, insurance companies, business interests, and, of course, the public at large. The Sherman Act reflected both the outcry of the public and the defensive maneuvers of big business. How much weight each interest has is, of course, the important question. It is not always easy to tell.

There is a middle view, then, between the exaggerated pluralist position and the extremists on the other side. The legislative process is neither as good at accommodating everybody as some have thought, nor as elitist and undemocratic as the worst of the cynics has described it. Rather, it is rough, complex, and imperfect. It also changes over time. African-Americans and consumers have, for example, a much greater chance to win the ear of legislators today than they did in 1950.

In general, legislative lawmaking needs a good deal more research. We particularly need to know a lot more about the bottom layers of decisionmaking. Most of the research we have puts the searchlight on Congress, although a certain amount does deal with state legislatures. We are much more in the dark about city councils, zoning boards, and school districts. The city council of Memphis, Tennessee, or the school board of Bangor, Maine, may not seem very important to the rest of the country, but the work of these local agencies, taken all together, is absolutely fundamental, and worthy of careful study.

Notes:

(1.) Public Sector California (Christie Glenny ed., 2013).

(2.) “Fingertip Facts on Education in California—CalEdFacts,” California Department of Education, http://www.cde.ca.gov/ds/sd/cb/ceffingertipfacts.asp (last updated Sept. 21, 2015).

(3.) State of California Office of the State Controller, Special Districts Annual Report (62d ed. 2011–12), http://www.sco.ca.gov/Files-ARD-Local/LocRep/1112_special_districts.pdf.

(4.) 369 U.S. 186 (1962).

(5.) “Initiative, Referendum and Recall,” National Conference of State Legislatures (Sept. 20, 2012), http://www.ncsl.org/research/elections-and-campaigns/initiative-referendum-and-recall-overview.aspx.

(6.) For a general background on direct democracy, see David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (1984); Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (1999).

(7.) These criticisms are discussed extensively by both Magleby, supra note 6, and Cronin, supra note 6. For one of the more skeptical views of the modern initiative process, see David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money (2000).

(8.) Broder, supra note 7, at 45–52.

(9.) Id. at 52–89, 164–97.

(10.) Norimitsu Onishi, “California Ballot Initiatives, Born in Populism, Now Come from Billionaires,” New York Times, Oct. 16, 2012.

(11.) These points are also discussed by Magleby, supra note 6, and Cronin, supra note 6. For a relatively recent defense of the initiative process, see John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (2004).

(12.) Cal. Const. art. XXI.

(13.) U.S. Const., art. V (providing that “no State, without its consent, shall be deprived of its equal suffrage in the Senate”).

(14.) James Bryce, The American Commonwealth 190 (2d ed., vol. 1 1891).

(15.) “The State Legislature,” California State Legislature, http://www.legislature.ca.gov/the_state_legislature.html (last visited Mar. 22, 2016).

(16.) On this development, see Lawrence M. Friedman & Jack Ladinsky, “Social Change and the Law of Industrial Accidents,” 67 Columbia Law Review 50 (1967).

(17.) Quoted in Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform 75 (1981).

(18.) Priv. L. No. 109-1, 120 Stat. 3705 (2006).

(19.) Priv. L. No. 112-1 (2012).

(20.) 1849-50 Ala. Laws 335.

(21.) 1849-50 Ala. Laws 392.

(22.) Ill. Const. of 1870, art. IV, § 22.

(23.) 26 U.S.C.A. § 170(d)(2)(A) (2015).

(24.) See, for example, on the allocation of radio channels, 47 U.S.C.A. § 303 (2010).

(25.) For the background of the Sherman Act, see William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (1965).

(26.) Ohio Rev. Code Ann. § 3715.59 (West 2001).

(27.) 427 U.S. 273 (1976).

(28.) 443 U.S. 193 (1979).

(29.) Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222–23 (1995).

(30.) Fisher v. University of Texas, 136 S. Ct. 2198 (2016); Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013); Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).

(31.) McBoyle v. United States, 283 U.S. 25 (1931).

(32.) 18 U.S.C.A. § 2312 (2006).

(33.) Ohio Rev. Code § 3763.01(A) (2003). “Betted” as the past tense of “bet” sounds strange to our ears, but apparently not to the people who drafted this statute.

(34.) Karl Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed,” 3 Vanderbilt Law Review 395 (1950).

(35.) James J. Brudney & Lawrence Baum, “Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras,” 55 William & Mary Law Review 483, 491 (2013).

(36.) Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997 (2012).

(37.) 481 U.S. 604 (1987).

(38.) Id. at 611.

(39.) Brudney & Baum, supra note 35, at 491, 494.

(40.) Nicholas S. Zeppos, “The Use of Authority in Statutory Interpretation: An Empirical Analysis,” 70 Texas Law Review 1073, 1138–39 (1992).

(41.) Holger Fleischer, “Comparative Approaches to the Use of Legislative History in Statutory Interpretation,” 60 American Journal of Comparative Law 401, 418–21, 430–31 (Spring 2012).

(42.) Quoted in Harry W. Jones, John M. Kernochan, & Arthur W. Murphy, Legal Method: Cases and Text Materials 432 (1980).

(43.) Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring).

(44.) Robert A. Dahl, Pluralist Democracy in the United States: Conflict and Consent 24 (1967).

(45.) Nicholas Confessore & Derek Willis, “2012 Election Ended with Deluge of Donations and Spending,” New York Times, Dec. 7, 2012.

(46.) McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014) (striking down aggregate limits on the amount an individual may contribute to multiple candidates and parties combined); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (striking down restrictions on political expenditures by corporations, unions, and other associations).

(47.) The lobbying and disclosure provisions are found in 2 U.S.C.A. § 1603 (2007) and 2 U.S.C.A. § 1605 (2008).

(48.) Lee Fang, “Where Have All the Lobbyists Gone?,” The Nation, Feb. 19, 2014.

(49.) John A. Ferejohn, Pork Barrel Politics: Rivers and Harbors Legislation, 1947–1968, at 2 (1974).

(50.) See, in general, James Buchanan & Gordon Tullock, The Calculus of Consent (1962). This is largely a theoretical, model-building account; for empirical confirmation, see Thomas Stratmann, “The Effects of Logrolling on Congressional Voting,” 82 American Economic Review 1162 (1992).

(51.) Pub. L. No. 111-148, 124 Stat. 119 (2010).