What is Congressional Legislation Made of?

In May of 2016, Texas Congressman Louie Gohmert addressed his colleagues in the House of Representatives on a matter of pressing concern. He posited that in the instance of earth being destroyed by an asteroid, the spaceship containing the 40 people chosen to rocket to Mars to set up a colony to preserve humanity should not include same-sex couples. This is apparently what he and his staff have been hard at work researching on behalf of the public interest.

For other blog posts questioning the rationale that underlies Congressional law-making, click here. 

See the video except of Representative Gohmert's speech below:

The Political Context of Business Organizations

We spend a lot of time in our Legal Environment classes and space in our textbooks covering the law-making procedures of courts.  Likewise, the administrative rule-making process is well covered. Inexplicably, we spend little or no time and space teaching about legislative law-making. Is it because we are too squeamish about the sausage-making?

Business law educators are familiar with the AACSB guidlines for undergraduate education and have lauded their recognition of the need for business education on legal and regulatory topics.  But one subject among those AACSB topic guidelines is all too often overlooked:

Standard 9: Curriculum content is appropriateto general expectations for the degree program type and learning goals.[CURRICULUM CONTENT] …

General Business and Management Knowledge Areas

· Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society

· Social responsibility, including sustainability, and ethical behavior and approaches to management …

(emphasis added).

In very few business schools do we offer course work exposure to the political context of organizations in society. It would seem that some discussion of the political law-making process in our Legal Environment courses is not only justified but necessary.

Which brings up the topic of the  recently released publication, "The Confessions of Congressman X."  This 65 page pamphlet purports to be the candid inside disclosures of a longtime Congressman.  As reported in the New York Post, the pamphlet contains revelations such as:

“Business organizations and unions fork over more than $3 billion a year to those who lobby the federal government. Does that tell you something? We’re operating a f–king casino.” 

and:

“I contradict myself all the time, but few people notice. One minute I rail against excessive spending and ballooning debt. The next minute I’m demanding more spending on education, health care, unemployment benefits, conservation projects, yadda, yadda, yadda.”

And quoted in the Washington Post:

“The average man on the street actually thinks he influences how I vote. Unless it’s a hot-button issue, his thoughts are generally meaningless. I’ll politely listen, but I follow the money.”

The way that big business money affects public policy as expressed in law is as relevant to a Legal Environment class as a discussion of stare decisis.  Just because sausage such as this is sure to give one indigestion, doesn't mean our students shouldn't know about it.

House Committee on Science Once Again Called Out For Denying Science

Legislatures make law.  But what makes legislatures make law? Of what is their law constituted? Logic? Reason? Justice? Science?  Where does "law" come from?

Click here for a prior post about legislators proudly displaying their ignorance of the things upon which they legislate.

Click here or on the image below to once again be flabbergasted:

Business, Lobbying, Government and Policy

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made."
     -  John Godfrey Saxe University Chronicle. University of Michigan (27 March 1869)

How is law made?

Was Daniel Shays Right?

Democracy is more or less accurately described as “rule by the majority.”  The drafters of our Constitutional scheme of government were concerned that a majority could become despotic and trample upon the rights and interests of minorities. We have seen ongoing example of this phenomenon throughout American history, particularly in the area of race relations.  American law in many states denied basic civil rights to persons based on the color of their skin - the majority races tyrannizing the minority races.  Public referendums enacting bars to same sex marriage would also seem to fall into this category.  

There is ample evidence that our founders’ concerns over the potential for “tyranny by the majority,” were not animated by a desire to protect the kinds of minorities that history has since borne out to be the victims of these injustices.  Their concern was for potential oppression of the numerically inferior but vitally important commercial interests of the nation. Shays’ Rebellion in Massachusetts caused our founders to fear that mass public uprisings and a legislative appetite for popular policies could thwart commercial interests and stifle the development of a nation.

Whether intended or not, in our Constitutional scheme, the courts have become the havens for oppressed minorities seeking relief from an overzealous oppressive majority.  As Judge Richard Posner wrote in his Federal Appeals Court opinion striking down same-sex marriage bans in Indiana and Wisconsin, “Minorities trampled on by thedemocratic process have recourse to the courts; the recourse is called constitutional law.”

That background brings us to consideration of the Supreme Court’s decision in Citizen’s United v. FEC. Laws enacted with the support of the majority limited the amount of money that corporations could spend on political election campaigns. Was this Shays’ Rebellion all over again? Was this not oppression of our nation’s vital economic interest by a self-serving and greedy majority? The court rescued the victimized corporations by declaring such restrictions constitutional. As Senate minority lead Mitch McConnell stated when he thought no one would catch him, the court had simply “level[led] the playing field for corporate speech.”  Oh, those poor oppressed corporations!

In Congress now, Senate Democrats have proposed a constitutional amendment that would undo Citizens United and allow the federal and state governments to regulate corporate monetary influence in campaigns. As is clear from this NPR report, the amendment has overwhelming public and bi-partisan support outside of Congress.  Yet, there is absolutely no chance that Congress will pass it.

When our Founders sought to protect economic interests from the political influence of the masses, they were concerned that commerce and the national economy would be stifled, financially strangling the new nation in its infancy.  The modern protectors of corporate interests from public sentiment seek to preserve the power of money – not to advance national economies and international trade –but to influence elections.  Many of those who seek to protect this corporate influence often purport to embrace the ideals of the founders for their political ideology. Somehow, I don’t think that preserving the influence of the affluent in elections was a founding ideal.

Here are some questions for our students:

What is the nature of this complex and complicated institution of democratic law-making?  Is the Supreme Court protecting huge multi-billion dollar corporations from oppression by the massed majority?  Is this the kind of “tyranny by the majority” that concerned our founders?  Is the majority always right? What should be the role of public opinion in law-making?  What should be the role of unlimited money in elections? How does that affect public policy as expressed in law?

Did Daniel Shays actually have the right idea in the first place? 

Shays' Rebellion:

Tyranny by the Majority:



Citizens United:



Constitutional Amendment:

Politics is Crazy and Politicians Make Law

According to their responses at a recent candidates forum, three candidates for the Republican nomination to run for the US Senate in Georgia would support a resolution to impeach President Obama if they had the opportunity to vote on one.  The most prominent among the candidates is Rep. Paul Broun. Rep. Broun,  was the subject of a post in this blog when, as reported by the Huffington Post, he famously opined:

"God's word is true. I've come to understand that. All that stuff I was taught about evolution and embryology and the big bang theory, all that is lies straight from the pit of Hell," said Broun, who is an MD. "It's lies to try to keep me and all the folks who were taught that from understanding that they need a savior."

Remember, these people make laws. When studying the Legal Environment of Business, it does a disservice to our student for us to focus entirely on the judicial process while ignoring the legislative process. The AACSB Accreditation Standard #9 requires as part of the Undergraduate Curriculum content:

• Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society (emphasis added)

  We are not so naive as to believe the Civic's Class maxim that the law is insulated from politics. Let's make sure our student get a thorough education as well.

Click here or on image to see video of Broun and others "voting" for impeachment:

Lobbying Benignly Described

One issue that has always concerned about our legal environment texts is that we have largely ignored the role of legislatures in the legal system.  We devote an entire chapter to courts and alternate dispute resolution systems, but legislatures typically get a paragraph or two. If you are looking for material to create a unit on legislative law-making, below are a couple of videos benignly describing the lobbying function.  Other related posts may be found here, here, and here.

Male Vice Principal Spanks Young Teen Girls... And It's Legal!

In the first part of my Legal Environment course, I challenge students to think about the nature of law, leading to the ultimate determination that law is made up by people. The law is not inherently just, it is just inherently human.  It suffers, as all man-made systems do, from imperfections and the results of human frailties, prejudices, mistakes and beliefs.

As an example is this news story.  Texas is one of 19 states allowing corporal punishment in schools with parental permission.  So when a sophomore girl was caught helping another student cheat, she was given a paddling by her male vice-principal. And this was not the first example.  The school system's response? It's all perfectly legal.  Which apparently, it is! But, the school system's own regulations require paddling only by an administrator of the same sex as the student. So, to make sure this doesn't happen again, the superintendent proposed to change the regulation to allow cross-gender paddling!

So, first the law is in contradiction of all science regarding child discipline, brain function and behavior modification. Second, the law ignores the inappropriate quasi-sexual elements of what would be a clear sexual assault if it was conducted by any other authority figure, say a stepfather, outside the school (or in most  anyplace outside of the state of Texas). And then, the minimal regulations that exists to temper the sting of the law are changed to encourage pseudo-sexual assault because to protect against it is inconvenient!

I don't know what is in the water in Texas, but this story on the heels of the highly publicized state Republican platform to ban the teaching of critical thinking skills in schools create for us a great teaching resource on the issue of the nature of law.  It's made up by people. And there are no requirements for lawmakers to be rational, fair, just, kind, forward thinking, intelligent, educated, or even interested in the public good.

The Story of How Lawmakers Come to Make Flabbergastingly Bad Public Policy

The Trayvon Martin tragedy has been, and will likely continue to be, front page news. At the heart of the controversy is Florida's "Stand Your Ground" law. This law results from a statute that reverses the Common Law principles of self-defense law that had been forged in case after case over hundreds of years. The legislative interference results in a legal doctrine that undoes a Common Law rule representing the applied wisdom of judges and justices after considering thousands and thousands of factual scenarios in order to promote a safe and civilized society.  The Dailybeast.com reports:

“The law would appear to allow a person to seek out an individual, provoke him into a confrontation, then shoot and kill him if he goes for his gun,” Judge Terry Lewis said .... “Contrary to the State’s assertion, it is very much like the Wild West.”

Judge Lewis' quote in response to a case upon which he presided arising out of a killing in 2008, now rings eerily prophetic as the details of the Martin-Zimmerman interaction are revealed. So, what would cause a legislature to adopt such a stupefyingly bad public policy.  The short answer as reported by the dailybeast.com is lobbying; lobbying riding a wave of fear mongering and public cynicism.  Read here an article detailing the efforts of past NRA president Marian Hammer to ensure passage of this bill.  Read here an editorial from the NY Times outlining lobbying efforts affecting "stand your ground" and other laws.

This story prompts us to ask students to consider where law comes from. Too often, student perceive law as some sort of immutable truth of right and wrong.  The story of this law's adoption, and the resulting tragic circumstances illustrate for students that the law is nothing more than what the lawmakers say it is.  It is not the spontaneous application of universal moral truths, but rather, can be nothing more than the result of poor decisions made by imperfect humans worried about their re-election to jobs which they poorly perform.

See also: The Legislative Process. 

A Public Policy-Making Fairytale? Egg-xactly!

In a prior post I have expressed a healthy criticism for the effect of interest group politics on the  legislative law-making process.  I think that is why this story reported by NPR resonated so deeply. It is a real life fairy tale of cooperative, sensible public policymaking for the common good.

The video below reports the results of the historic cooperation between the Humane Society and the United Egg Producers to recommend new egg production regulations meeting the needs of both organizations.  But the NPR audio report is a more compelling story of how dedicated advocates came together to put extreme self interest aside to pursue the public good.  My summary could not do it justice.  Listen here.

SOPA/PIPA Protest: The Day The LOL Cats Died - And More

What happens when you piss off the intelligent, creative, and tech savvy?  These protests are appealing to me as they draw on two of my favorite dynamics: 1) musical parody/social commentary, and 2) critical examination of the legislative law-making process which is too often passed off in civics classes as benevolent public policy making for the common good.  Pick your favorite version!

LOL Cats:



 Posted 1/17/12:


posted 1/18/12:


posted 1/19/12:


posted 1/20/12 - the folk song version?


More SOPA protest:




WARNING! This one uses the F-word, as in "Don't f**k with the internet!"  But it is really very good and I think speaks to undergraduate students in their own idiom.




WARNING! This one also includes the F-word. For better or worse, it is part of the lexicon of protest.





. . . and too many more to include here. Go to youtube and search "SOPA song."

The Legislative Process

I have always thought it odd that few BLAW texts devote any significant space to the legislative process. Every text devotes a chapter (or more) to courts and the dispute resolution process.  There is coverage of juries, judicial selection, civil procedure, criminal procedure, stare decisis, judicial review, legislative interpretation by courts and many other topics that comprise the judicial process.  Why do we, as an academy, choose to largely ignore the legislative law-making process in the curriculum of a law class?

I use the old Schoolhouse Rock standby, Just a Bill on Capitol Hill, as an example of the "civics class" view of lawmaking (much in the way that high school students are informed that "law" is insulated from the effects of politics).


The "real" legislative process, of course, is imbued with interest group politics. Through lobbying, campaign contributions, astroturf organizing and other various methods, the best organized and well funded interest groups have a significant effect on what policies are enacted into law.

An article that appeared in the Hartford Advocate and the Fairfield County Weekly chronicled efforts of the Connecticut legislature to require disclosure labels for genetically engineered food. The article advises, "Colin O'Neil, a policy analyst with the Center for Food Safety in Washington, D.C. . . . says bills similar to Connecticut's genetically modified (or GM) food labeling measure have been repeatedly introduced in other state legislatures and in Congress, and have been blown away by the combined lobbying power of the food, agricultural and biotechnology industries."

Of course, it follows, unsuprisingly, that interest groups also heavily influence the administrative process. The US Supreme Court is likewise not immune from interest group influence. Perhaps this following parody of the Bill on Capitol Hill song is more appropriate.