1SYLLABUS AND COURSE INFORMATION: LEG-REG (LAW 6209-10)

Professor Joshua I. Schwartz

Spring 2021
Office: Stuart 420 (Not that you or I will get there this semester!)
Telephone: (202) 994-0008
E-Mail: JSchwar@law.gwu.edu (Please note that my full last name is not included in this email
address. JSchwartz@law is someone else.)

Course Information

 Virtual Class hours: Tuesdays, Wednesdays and Thursdays, 2:45 pm – 3:40 pm

 Virtual Office Hours Via Zoom: Mondays, 2:45 pm – 3:40 p.m., and Fridays, 12:00 noon
– 1 p.m., or by appointment—(these can be via Zoom or telephone)

o Note that these office hours are dedicated to your class. My Brandeis Inn
Property students have separate times. Also these are drop-in office hours
and are meant to accommodate more than one person. If you would like a
private time, email me and we will arrange that.

 Exam: Tuesday April 27, 2021 at 2:00 p.m. (Important: See explanation on pp. 2-3 of
how this exam works.)

Required Course Materials

Eskridge, Gluck & Nourse, Statutes, Regulation and Interpretation: Legislation

and Administration in the Republic of Statutes (West Publishing Co. 2014); ISBN
978-0-314-27356-7
Professor’s Supplemental materials (free, of course!) on the class portal
Editors’s Supplement and Update (free) on the class portal

Grading Policy; Class Participation; Attendance

 Your grade in this course will be based on the final examination, a part of which
is somewhat unusual in design and which is described below. However, I reserve
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 the right to add up to one grade increment to your exam-based grade to reflect
exemplary class participation, especially when your performance fell just short of
the next higher grade, and you class performance suggests a higher standard than
does your exam. For example, in such circumstances a B could become a B+, a
B+ could become an A-, or an A- could become an A, etc. Note that I do not
reduce exam-based grades based on sub-par class participation. Furthermore, I
generally do not boost A’s to A+’s on the basis of superior class participation.
You will note that because the class uses a group on deck system, described
below, participation points are very rarely awarded.

 Regular class attendance is expected, absent a compelling justification such as

illness, family emergency or job interview. As indicated in the Law School
Bulletin, I may preclude you from taking the final examination if you have undue
unexcused class absences.

 On deck system: For most, but not all, class sessions, a small group of students
will be assigned in advance to be “on deck” for a specific case or problem.
that is, to be especially responsible and liable to be called on for presentation
and discussion of the day’s materials. Generally on deck assignments will be
made a week or so in advance—if possible by the time of the last class of the
week, all of the assignments for the next week should be posted on the portal.

 If, for any reason, you anticipate being unable to attend on a day that you are
designated to be on deck, you need to inform me as promptly as possible. If
your personal situation (lack of quiet space, lack of adequate internet) does
not allow you to be on deck, on that date please let me know as soon as
possible. Being on deck is a good learning experience, but we will not be
penalizing anyone whose situation does not permit that. Obviously, illness-
based absences may not be anticipatable much in advance, but it is still your
obligation to keep me informed as much in advance as is reasonably possible.

 Note also: on deck assignments will be specific to the particular case, or in

some cases, to a particular problem. Groups ranging from 2 -5 will be
assigned for each case. Sometimes there will be more than one case per day;
in that instance, different groups will be assigned to each case. But another
consequences of the fact that the on-deck assignment is to the case is that if
the case carries over from one class to the next, you stay with your assigned
case.

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  Please note carefully the following additional points about class preparation
and participation and the manner in which class will proceed:

• Notwithstanding the use of the on-deck system, all students are expected to be
prepared for each day’s class.

• For a few classes (to be identified in advance) we will not use the normal on
deck system, and may use volunteers to play roles to be assigned in advance.

• Finally, for a few classes (to be identified in advance) I will likely lecture.

Final Exam

This exam will used a mixed style of examination. There may be some multiple choice
questions and/or paragraph answers. There likely will be one or more traditional law school type
essay questions. Finally, a third or so of the exam will consist of what might be considered a
modified take home component that I have used in the past in my upper level Legislation class
on advanced statutory interpretation methods. The methodology for this component of the
exam is different from almost any other exam in this Law School, so please take careful
note of how it is to work.

About a week before the date of the final examination, perhaps more, I will distribute a
packet of materials (usually consisting of one major case, perhaps accompanied by statutes, etc.)
so that you can go over these to your heart's content on your own. The thing is, you won’t have
the exam questions for this material and will only get them during the exam itself. That is why
this is not technically considered to be a take home exam. It also will include a set of special
academic integrity rules for the exam that are specific to this course. Generally speaking, those
rules restrict collaborative preparation and independent research by students that is directed at
the materials in the exam packet -- effective the date that the exam packet is released. (I will post
last year’s exam from my Legislation course so you can get a sense of how this works and get a
look at the rules packet and last year’s exam itself on the class portal.)

The exam will be open book, so that you may use the usual things, including the
casebook, and any materials that you have prepared based on the case-packet distributed in
advance of the exam itself, and, of course, the case packet itself.

You will want to have your casebook available during the final exam, along with the
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exam case packet.

Course Objectives

Some of the objectives of this course are different from those of most law school courses.
Rather than focus on any doctrinal subject matter in a discrete area of law, the goal is to master a
diversity of techniques for interpreting statutory texts –no matter what the doctrinal subject
matter may be. You should develop an understanding of the controversies about the proper
method of interpreting statutes that are so prominent in our jurisprudence today. You should be
able to identify the theory of interpretation employed in a particular judicial opinion as well as to
identify the tools employed to provide evidence to support a particular interpretation. You
should learn to distinguish between the theory of interpretation and the tools for interpretation
that are being used in a particular case. Finally, regardless of your own personal views as to the
best methods for reliably and fairly determining statutory meaning, you should become able to
evaluate how well a particular judicial opinion supports its conclusions. As noted above, the
course final exam will give you two or more judicial opinions to study a week or so before the
final exam without giving you the actual exam questions. The exam questions will ask you to
identify, analyze, explain and evaluate the theories and tools for statutory interpretation that are
employed in these judicial opinions.

SYLLABUS

Important Notes:

This syllabus breaks the semester's readings into blocks that generally correspond
to our scheduled class meetings. You should always adhere to the schedule, as
announced in class and on the class portal, for moving through the assignments.
We will almost always move at the rate of one assignment per class meeting. You
should prepare accordingly unless I explicitly change the pacing on the portal or
in class. Even if announced in class the schedule will always be available in
current form on the portal. You will note that we have just one more assignment
than there are classes so you can really expect one assignment per class.

Unless otherwise indicated, pages listed below in the assignments are in the
Eskridge, Gluck & Nourse casebook. Anything in the Casebook supplement
(found on the portal) will be so described in the syllabus (“CB Supp.”) and any
Supplemental materials from your professor will be described appropriately and
found on the portal.
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 For most assignments there will be study questions and some supplemental notes
posted in advance on the portal—using labeled as “Notes and Study Questions for
Asst. # ___.) These will be posted in time so that they will help you to prepare for
any given class.

I. Introduction

Assignment #1: pages 1-11

Assignment #2: pages 33-53; also, instead of class on Wednesday Jan. 6, you are to watch the
video called An Act of Congress, which is available to you through “My Recordings” on your
personal portal home page—NOT on the class portal page.

Video Instructions:
 click on “My Recordings” (on the left hand side of your personal portal home page near
the bottom)
 on the page that appears click on the “button” for “Access My Recordings”
 you will be taken to a page with three parallel line segments in the upper left hand corner.
Click on those and you will get a drop down menu, including, as the last item,
“Channels.”
 Click on Channels, and you will go to the page where all the channels for which you are
subscribed appears. This should include all of your courses, and may include those from
last semester.
 Click on the rectangle for “6209-12 Legislation and Regulation (Spring 2021).” There
you will find each of the course videos, including recorded classes for our course, and the
pre-recorded videos such as An Act of Congress.

Assignment #3: pages 77-79; pages 272-283 (Johnson v. Santa Clara County)

II. Theories or Touchstones for Statutory Interpretation

Assignment #4: pages 299-318 (Contrasting Approaches: Rector, Holy Trinity Church v. United
States; Caminetti v. United States)

Assignment #5: pages 318-330 (Exploring the Possibilities: The (Hypothetical) Case of the

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Speluncean Explorers; the Legal Process School/”Purposivism”)

Assignment #6: pages 330-349 (Dynamic Interpretation: Matter of Jacob)

Assignment #7: pages 349-366 (Textually Oriented Intentionalism: United States v. Locke; TVA
v. Hill)

Assignments #8 and #9: pages 366-409 (The New Textualism: Green v. Bock Laundry; Chisom
v. Roemer; West Virginia University Hospital v. Casey)

Assignment #10: pages 409-434 & 441-445 (Pragmatic Interpretation; The New Legal Process:
United States v. Marshall; Zuni Public School District)

III. Tools for Statutory Interpretation

Assignment #11: pages 447-471 ((intrinsic devices, including textual and grammatical canons:
Nix v. Hedden)

Assignment #12: pages 471-490 (more canons; dueling interpretive devices and approaches:
Babbitt v. Sweet Home Chapter)

Assignment #13: pages 490-512 (substantive canons introduction and the rule of lenity:
Muscarello)

Assignments #14 and #15: pages 512-520; 529-532 (The Canon of Constitutional Avoidance
a/k/a “the Ashwander doctrine: Skilling; NFIB v. Sibelius; Severability); also handout on portal:
NLRB v. Catholic Bishop

Assignment #16: pages 532-552 (the Federalism clear statement rule; Gregory v. Ashcroft)

Assignment #17: pages 552-560 (the debate about the value of the canons)

Assignment #18: pages 601-616 (the New Textualist critique of use of legislative history)

Assignment #19: page 617-629 (a voice from across “the Pond” doubles up Justice Scalia:
Pepper v. Hart)

Assignment # 20: pages 630-49 (defense of use of legislative history; use of legislative history:
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Public Citizen)

Assignment #21: pages 566-569; 569-575 (hierarchy of statutes: Morton v. Mancari)

Assignment #22: pages 575-595 (interpolating public values; dynamic interpretation; the role of
the common law: Bob Jones)

Assignment #23: pages 251-283 (statutory stare decisis: Flood v. Kuhn; Johnson v. Santa Clara
County (this is review; you read it in assignment #3)

Assignment #24: Summing up? handout on portal: Brown & Williamson Tobacco

IV. Regulation

Assignments #25 and #26: pages 713-761(Notice and Comment Rulemaking: Nova Scotia Food
Products; State Farm)

Assignment #27: pages 777-801 (Adjudication: Fox TV)

Assignment #28: pages 838-852 (Interpretive Rules and Statements of Policy: Skidmore)

V. Judicial Review of Agency Action: Deference and Its Limits

Assignment #29: pages 940-945; 823-837 (How do Agencies Interpret Statutes?: Massachusetts
v. EPA)

Assignments #30 and #31: pages 853-874; 892-910 (Deference: Skidmore; Chevron: Mead)

Assignment #32: pages 874-892 (Textualism and Chevron deference: MCI; Utility Air
Regulatory Group)

Assignment #33: pages 922-937 (Chevron Step 0: Gonzalez; City of Arlington)