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:

Is it Statue or Statute?

Thanks to my colleagues at NEALSB this past weekend.  It was another enjoyable weekend of law and laughter. At dinner we talked about this Seinfeld clip and the 2000 vocabulary words that Robert Wiener's students at Pace are required to spell (OK, it was "2 dozen," but we all heard "2 thousand.")

Vocabulary lesson #1: Is it STATUE of limitations or STATUTE of limitations?

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?

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:

Who Makes law?

When searching for interesting talking points about the law-making process, the election season just seems to keep on giving. Recently, Missouri Congressman and senatorial candidate Todd Akin made headlines for famously proclaiming that women who are victims of "legitimate" rape rarely get pregnant. As noted in this post, Akin's ignorance of science is all the more tragic given that he serves on the House of Representatives Committee on Science, Space and Technology. Now, it is reveled that Akin's Science Committee colleague, Representative Paul Broun of Georgia, has also chosen to publicly celebrate his disdain for science with these comments:

“I’ve come to understand that all that stuff I was taught about evolution and embryology and Big Bang theory, all that is lies straight from the pit of hell." 

So, once again, we are reminded that the law is made up by people - people who have agendas and ideologies and interests that may or may not be consistent with fact and rationality.  Representative Broun's position is all the more shocking given that outside of Congress, Broun is a physician. And the final irony is that even though he wears his scientific ignorance proudly, he is assured of re-election since he is running unopposed. His obvious deficiency as a steward of public policy apparently elevates his electoral prospects to the point where he is considered unbeatable.

This is the nature of law-making.

Here is the excerpt of his speech, given in front of a wall exhibiting more than a dozen severed torsos of sentient beings.

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.

Do We Need a Law That Says That the Law is The Law?

NPR recently reported on growing fears in Tennessee that Sharia would become the law of the land.  Apparently, the governor hired a Muslim worker in the state's Economic Development office.  This apparently set off a firestorm of protest that even figured into the Republican primary for a Congressional seat.  the incumbent, Rep. Diane Black, was apparently criticized for not taking a strong enough stand against Sharia law. The criticism prompted Black to offer, "I understand the devastation that Shariah law could mean here in our country, and I'm a sponsor of a bill that will once again say that the United States Constitution is our law and that it is the supreme law."

The law will say that the law is the law. Perhaps Black is positioning for an appointment in the Department of Redundancy Department.

Is opposition to Sharia law akin to saying, "I am against the government making currency out of ice cubes?"

This report prompted me to ask my class, "Is there widespread understanding of how law is made/where it comes from?"

If a Law Is Typically Ignored In a City, Is It Still a Law?

This political season gives us another opportunity to evaluate the effectiveness of law in shaping conduct. According to the Connecticut Post, Christina Ayala, the Democratic candidate for a seat in the Connecticut General Assembly from the city of Bridgeport was arrested and charged for a recent incident.  According to police, Ayala, who was driving with two children in the car (ages 7 and 13) ran a red light, smashed into another vehicle rendering it a total loss, and then fled the scene.  Ayala issued a statement expressing regret for her "mis-judgment."

One might think that this incident could effect Ayala's chances of getting elected.  However, in a follow-up story, the Post reports that her political aspiration are likely intact.  Expressing a view apparently held by many, Ayala's father intimated that the other driver should have been more vigilant. "This is Bridgeport. People take stop signs, they take traffic lights every day."

Apparently, ignoring public safety laws is common in Bridgeport, destroying the very reason for the law's existence.  Instead of travelling the streets secure in a social contract that others will obey the law, you must conduct yourself as if this is the Wild West and everyone is free to make up their own rules. And soon, a person raised in and a participant in this environment will be elected to the legislature, ostensibly to make laws that everyone should feel free to ignore.

In teaching law to undergraduates, I had taken as a "given" that adherence to law is a universal value.  Now I see that I have to consider the effect of geographic and cultural differences on student understanding.  Some students may come from places where the law is commonly ignored.

Akin Exposes Law-Makin'

A big political story this last week has been the comments of Todd Akin, a Missouri Republican Congressman and US Senate candidiate, opining that women do not typically become pregnant as a result of rape.   His comments, having absolutely no basis in science, have understadnably sparked criticism from both sides of the political aisle.  And although this is a politically charged issue in an election cycle, the teachable moment form this incident is not at all political, but institutional.

Where does law come from?  Is it organic or is it fashioned by human lawmakers?  If law is constituted of human actio, what is the nature of the lawmaking process?

Akin has served 12 years as the Congressional Representative from the 2d Congressional District of Missouri. He serves on a number of committees - most notable in this instance is his appointment to the US House of Representative Committee on Science, Space and Technology.  Yes, Representative Akin, whose scientifically fantastical statements about human reproduction got him into so much trouble is actually one of the people who we rely on to make good public policy about science.  Is this like the fox guarding the hen house, or is this just the way law is made?

"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)

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. 

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.

Pirate Radio - "Simply Make up a New Law That Makes it Illegal"

The year is 1966. Rock 'n' Roll has been banned from play on Britain's radio stations.  But Radio Rock (like this station) broadcasts from a ship out in the North Sea and technically outside of the reach of Britain's regulatory scheme. This clip from the movie Pirate Radio reflects the view of "the man" in government, unfairly wielding the law as a crude weapon for social ordering!

Click here or on the image below to go to the video clip: