classic application of Title VII (do the practices violate Title VII's
anti-discrimination provisions). In this case- how far can
employers go to try to take aggressive affirmative steps to
remedy past discrimination by preferring black employees in
some situations over white employees (why should this white
employee suffer to remedy past discrimination).?
a. Does Title VII prohibit employers from voluntarily doing things to
advance racial balance in the workplace? They're not required to
do this. But are they prohibited from doing it if they decide they
want to?
Court says no, this is OK.
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"We therefore hold that Title VII's prohibition against racial
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discrimination does not condemn all private, voluntary,
race-conscious affirmative action plans."
1. Johnson
a. Held that consideration of the sex of applicants for skilled craft
jobs was justified by the existence of a manifest imbalance that
reflected underrepresentation of women in traditionally
segregated job categories.
a. Why?
The Agency appropriately took into account as one factor
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the sex of Diane Joyce in determining that she be promoted.
This kind of plan, which represents a moderate, flexible,
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case-by-case approach to effecting a gradual improvement
in the representation of minorities and women in the
Agency's work force, is fully consistent with Title VII.
A. Common Law vs. Statutory Law
1. Common Law
a. Judges make the law.
a. Incremental lawmaking: evolution
a. Initiated by private citizens- the parties
Unequal access to legal system means some concerns are
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prioritized and others ignored
a. Judiciary is often insulated.
May be good because a judge eyeing re-election might
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decide cases in favor of the majority and leave the rest
without recourse.
1. Statutory Law
a. Legislature makes the law.
a. Global lawmaking: revolution (so more efficient in addressing an
immediate, large-scale need such as the financial crisis)
a. Initiated by public figures (can address issues that affect all
portions of society)
a. Not insulated- legislators answer to their constituencies.
A. Theories of Legislative Representation
1. Public policy is created by the representatives of the people
1. Descriptive Theory
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a. President must accept or reject the entire bill. His only options
are to veto or pocket veto the entire bill.
a. Logrolling
Vote-trading: A will trade her support for a dam that B
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1. Bribery
1. Anti-bribery statutes might serve 3 different purposes:
a. to protect the integrity of the public servant's decision-making
process, so that decisions are made to advance the public
interest and not the decision-maker's private agenda
a. to avoid the appearance of unfairness and abuse of office
a. to assure equal access of all citizens to the services of public
servants
1. Most cases fall along the spectrum between clearly legitimate
arrangements and patently corrupt deals.
1. The trustee advocate might view logrolling as bribery, as well as
campaign contributions that carry a commitment by the legislator to
vote in specified ways on future issues.
1. The agency advocate would want to limit bribery prosecutions to
those cases where the representative benefits personally and not to
prosecute in those cases where the representative is merely making
political tradeoffs that serve the interests of her constitutents.
A. Campaign Finance Regulation
1. Structures of Campaign Finance
a. Tillman Act of 1907- prohibited all corporations and national
banks from making money contributions in connection with
federal elections. Extended to AL contributions by the Corrupt
Practices Act of 1925.
a. Taft-Hartley Act of 1947- prohibited unions from making
contributions in connection with federal elections.
a. Federal Election Campaign Act Amendment of 1974- set limits on
campaign contributions and expenditures in presidential and
congressional election campaigns and established the Federal
Election Commission (FEC) to administer and enforce the law.
Contribution Limitations: FECA prohibited individuals and
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most groups from contributing more than $1,000 per
candidate for each primary election and more than $1,000
per candidate for each runoff or general election.
Individuals could not contribute more than a total of $25 K
per year.
Expenditure Limitations: FECA limited expenditures by
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individuals and groups relative to a clearly identified
candidate during a calendar year to $1,000. Other
provisions limited spending by candidates from their
personal or family funds and limited overall expenditures by
candidates to differing amounts depending upon on the
office they sought.
1. The Court has upheld the contribution limitations while
STRIKING DOWN the expenditure limitations in Buckley
v. Valeo
1. Expenditure limits, under Buckley, are subject to strict
scrutiny (anything deemed to infringe upon a First
Amendment right has to be justified). B said
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1. Trustee viewpoint
a. The legislature gets co-opted by interest groups, when it does,
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Title
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1. Background/History
a. Statutory history- the entire circumstances of a statute's creation
and evolution
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into law- sometimes the statements address important policyrelated issues of statutory meaning.
a. Some reluctant to give them much weight because they are
dubious about "subsequent legislative history."
a. Federal judges rarely mention presidential signing statements
and almost never give them dispositive weight.
a. Courts WILL sometimes rely on the President's veto statement. If
Congress overrides the President's veto, an interpreter might
infer that Congress rejected the President's preferences. If
instead the bill is modified and enacted with the President's
signature, the veto statement may provide a good
understanding of the nature of the new bill.
a. Might be considered subsequent legislative history
Highly disfavored for rule of law and policy reasons
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1. Funnel of Abstraction
a. From the bottom of the funnel up:
a. MOST AUTHORITATIVE to LEAST AUTHORITATIVE:
Committee reports
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Sponsor statements
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Colloquy on floor and in hearings
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Rejected proposals
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Nonlegislator proponents or drafters
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Subsequent history
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