legislative history last statutory technique in course. common to look at: – statements from floor...

Legislative History• Last statutory technique in course.

• Common to look at:– Statements from floor debates– Committee reports– Earlier drafts of statute– Amendments (both adopted and rejected)

Legislative History

• Keen/Scalia Objection:–Legislature only voted on final text, not

on any of the background statements

–Impossible to know if a majority of legislators agreed with any interpretive comment

Legislative History

• Factors that go to weight given:– Consistent with text of statute?

– Likelihood that legislators considered• Committee Reports > Indiv. Statements

• Bill Sponsor > Other Speakers

Legislative History

• Factors that go to weight given:– Blatt Policy Community more likely than

others to create reliable legisl. history

– Where Political Community/negotiated compromises at issue, less useful

Legislative History

• Factors that go to weight given:– Type of point made from legis. history

• Good evidence that legislators aware of a particular problem

• Less good on how problem should be resolved, especially indiv. statements

Legislative History

DQ 111: For Wednesday

• Imagine a debate between Keen and Foster: Should courts use legislative history (LH) to interpret statutes?

• Be prepared to argue whether/why the use of LH in each of the listed cases seems sensible (helpful for Foster) or problematic (helpful for Keen). Qs?

FHA Definition of “Handicap”: Recap

FHA §3602(h): "Handicap" means, with respect to a person—

1. a physical or mental impairment which substantially limits one or more of such person's major life activities,

2. a record of having such an impairment, or3. being regarded as having such an impairment,

but such term does not include current, illegal use of or addiction to a controlled substance….


FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: •Perception re existence of impairment: A perception that someone has an impairment that substantially limits a major life activity (SLMLA) when the person doesn’t have (or may not have) the impairment in question (Franklin Building).


FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: •Perception re existence of impairment•Perception re effect of impairment: When someone actually has an impairment, a perception that the impairment SLMLA when it doesn’t (or may not).


FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: •Perception re existence of impairment•Perception re effect of impairment•Limitations due to prejudice: When someone has an impairment that SLMLA because of the irrational prejudices of others (Arline; Baxter; Southern Management).


FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: Limitations due to prejudice:•Baxter: Congress intended FHAA to follow USSCt interpretation of Rehab Act in Arline that adopted this reading of “regarded as” clause•Now Arline rule well-established for FHAA both in cases and in HUD regulation

FHA Definition of “Handicap”: Baxter

HIV & Public Safety Defense

FHA §3604(f)(9): Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”


HIV & Public Safety Defense• D raised §3604(f)(9) as a defense, arguing that having HIV positive individuals (especially drug users) in neighborhood would pose a threat to health of others.• TCt made findings of fact

– In this context, HIV created no threat to health or safety– No threat from current drug users, because not accepting them as residents.


Evidence of Discriminatory Intent•Lot of evidence of improper concerns by Board•Can add to info from Rizzo re proving intent by gov’t entity


Evidence of Discriminatory Intent: Some Highlights• Evidence Not Deciding Based on Record

– Repeated Qs re IV Drug Users, Although Told Would be Screened Out– Expressed Concern re Director’s Lack of Qualifications, But Had No Info– Heavy Focus on Danger to Nearby Junior High (Stereotyping v. Evidence– Board’s Findings Look Like Conclusory Application of Legal Tests

• Abnormal Procedure: – Overruling Local Alderman– At Zoning Board, No Spoken Opposition, But Unanimous Denial

FHA Definition of “Handicap”: Franklin Building

Theory of Case• P wants to build housing for the elderly• D (City) denies P certificate necessary for project• P argues discrim. against elderly can fall under “regarded as” prong of definition of “handicap”• First type of “regarded as claim”

– Perception re existence of impairment– Claim is that D rejects elderly b/c of belief that they will be significantly disabled


Theory: First type of “regarded as” claim: D rejects elderly b/c of belief that they will be disabled. Problem with:

Is every case of housing discrim. against elderly actionable as FHA “handicap” case?


Theory: First type of “regarded as” claim: D rejects elderly b/c of belief that they will be disabled. Problem with:

Is every case of housing discrim. against elderly actionable as FHA “handicap” case? Statutory interpretation concern:

– Congress has explicitly prohibited age discrimination in employment (ADEA) but hasn’t done so for housing.– Is theory in Franklin really an attempt to create a claim Congress didn’t want?


Theory: First type of “regarded as” claim: D rejects elderly b/c of belief that they will be disabled. Problem with:Is every case of housing discrim. against elderly actionable as FHA “handicap” case? Statutory interpretation concern:

– Congress has explicitly prohibited age discrimination in employment (ADEA) but hasn’t done so for housing.– Is Franklin really an attempt to create a claim Congress didn’t want?

Maybe OK if require specific evidence tying rejection of elderly to concerns about disabilities. Here there is:

– Statements re likely disabilities of residents– Qs as to how medical needs would be met


Specific evidence tying rejection of elderly to concerns about disabilities: Could examine D’s stated reason for rejecting project: “inconsistent w economic development of Ocean City as a resort community.” Why inconsistent?• Maybe about perceived disability

• Maybe about inconsistency w marketing as fashionable resort• Maybe: “Last resort” argument: “Whether they’re healthy or not, old people are depressing to younger people; remind people of aging & death; not consistent w resort atmosphere” (Is this perceived disability or something else?)

FHA Definition of “Handicap”: Southern Management

Treats discrim against recovering addicts as an Arline-type “regarded as” claim: SLMLA b/c of prejudice of others.• As evidence of this, the court uses the interference with access to housing in the case itself.• Feels circular b/c suggests that any discrim against a group with a real or perceived impairment will be enough to create claim


Treats discrim against recovering addicts as an Arline-type “regarded as” claim: SLMLA b/c of prejudice of others.• As evidence, court uses interference with access to housing in the case itself.• Feels circular

However, although court doesn’t say this explicitly, definition requires a “substantial limitation.”

– Thus, a single idiosycratic rejection not enough to be SLMLA– Would need to show that prejudice pretty widespread– Likely true for recovering addicts or for HIV in 1980s


To fit definition even under Arline theory, need to show that addiction is an “impairment”

– Condition must be one Congress intended to cover. – Might argue that addiction is a kind of immorality or character flaw rather than a physical or mental impairment.


Evidence that addiction is an “impairment”: •Explicit statutory exclusion suggests Congress believes addicts would covered otherwise •Legislative History suggests addicts covered•HUD Regs include on list of impairments•Almost certainly current consensus of med/psych establishment


Meaning of Statutory Exclusion: FHA §3602(h): “‘Handicap’ … does not include current, illegal use of or addiction to a controlled substance….”

Does someone who has had an addiction but is currently not using have a “handicap”?


“‘Handicap’ … does not include current, illegal use of or addiction to a controlled substance….”

Does someone who has had an addiction but is currently not using have a “handicap”?

• Does “current” modify “addiction” or just “illegal use”?• We use “addict” in two ways, like “alcoholic.”

– Can mean currently using– Can mean a permanent condition (regardless of behavior)– Court is comfortable that legisl history shows intent to protect addicts who aren’t currently using

MAY & JUNE1968

Sirhan Sirhan

RFK Waiting for the Ambulance at the Ambassador Hotel (6/5/68)

REASONABLE ACCOMMODATIONS

FHA §3604(f)(3): For purposes of this subsection, discrimination includes—

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling…


Basic Structure of Claim •People w X disability do not have equal opportunity to obtain and enjoy housing under existing neutral policy•Claimant requested a specific exception to policy to make use of the housing possible•Dfdt refused to allow.


KEY ELEMENTS OF CLAIM: NECESSITY & REASONABLENESS

FHA §3604(f)(3): For purposes of this subsection, discrimination includes—

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling…


NECESSITY & REASONABLENESSNecessity: Is some accommodation necessary for person w particular disability to enjoy or have = access to housing


NECESSITY & REASONABLENESS•Reasonableness: Is the suggested accommodation reasonable•Leading case on meaning: Davis (Rehab Act §504) cited in Shapiro & Congdon:

– Some costs on Dfdt OK– Three part test


Davis test: Requested accommodation is unreasonable if:

1.Undue Hardship (harm to others disproportionate to benefit to claimant)2.Substantial Burden3.Fundamental Alteration in Nature of Program



1.Undue Hardship

2.Substantial Burden (Harm to others too great)3.Fundamental Alteration in Nature of Program



1.Undue Hardship 2.Substantial Burden

3.Fundamental Alteration in Nature of Program (effects of having exceptions to policy too great)


As Congdon makes clear:•Dfdt can also prevail by providing alternative accommodation that reasonably takes care of problem •Implicit: alternative makes claimant’s proposed accommodation no longer “necessary”

REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers

• Ptff has Multiple Sclerosis• Co-op where she lives: some parking spaces,

allocated 1st come 1st serve • Ptff requests parking space immediately.• Denied by Co-op Board (must stay on wait

list)• DCt grants prelim inj. on reas accom claim


DQ104: Challenges to Findings of Fact (Clearly erroneous standard. See Marable)•P is not disabled•Accomm. not necessary; she can get an operation•Accomm. not necessary; street parking is available


DQ104: Challenges to Findings of Fact (Clearly erroneous standard. See Marable). D claims:•P is not disabled•Accomm. not necessary; she can get an operation•Accomm. not necessary; street parking is available

Why might a lawyer choose not to raise these on appeal? Any harm in trying?


“Necessary” is easy here given Findings of Fact•P is disabled•Operation is dangerous•Street parking is not available

1.Nearby parking is substantial part of use & enjoyment of dwelling: 2.W/o parking: risk of injury, infection, humiliation


Court decides meaning of “Reasonable”•Chooses to follow Rehab Act (not Title VII)•Explicitly adopts Davis standards•Rejects D argument that regs only allow for trivial burdens


DQ108: Hard Q: Does FHA require the coop to give her parking space if it displaces another resident. Absent creative work by Co-op: Either

– Some other resident tenant has to lose parking space & go back on wait list OR

– Some resident who was about to get spot has to wait for next opening

Should court force co-op to do this?


DQ108: Hard Q: Does FHA require the coop to give her parking space if it displaces another resident. Should court force co-op to do this? • Jumping in front of line pretty common accomm.• BUT employment cases protect job seniority• If Co-op has to spend money …

– spread over a lot of owners, so likely small amt each– but nothing in statute or regs tells you how much $$ is unreasonable.Qs on Shapiro?

REASONABLE ACCOMMODATIONS:Congdon v. Strine

Significance of Offer of First Floor Apt.: Review of Fact Issues

•Costs of moving ($ + time & who pays)•Differences betw the apts (noise; view; size; amenities)•Ct doesn’t appear to have relevant info before it: lawyering failure


Reas. Accom. Analysis•Not clear any accomm requested besides fix elevator•Ct characterizes request as replace elevator•Ct doesn’t analyze tightly with respect to language of the three prongs of Davis test, but concludes not reasonable

REASONABLE ACCOMMODATIONS:Congdon v. StrineReas. Accom. Analysis

•Court focuses on 3 facts:1. Offer of 1st floor apt2. Cost of new elevator too great3. Ps have month-to-month tenancy, so no commitment to

staying in complex

•Suggests doing “undue hardship” (weighing burden on others ag benefits to Ps)

– low benefits from new elevator b/c good alternative and can leave at any time

– v. High cost to O and other tenants


Questions?

COURSE SELECTION:PREPARATION

• Become Familiar with Registration Procedures– Especially Wait Listing

• Become Familiar with Graduation Requirements• Read Course Descriptions (on line)• Read Course Evaluations (Circulation Desk)

COURSE SELECTION:2L FALL SEMESTER

• Not Sophomore Year in College– No Need to Get All “Basic Courses” Out of the Way Early– No Need to Take Heavy Load

• You Won’t Get Everything You Want, Especially if Afternoon Registration Time– .Basic Courses very thin right now (could change later)– Check MyUM in advance for course status– Prepare Alternatives

COURSE SELECTION:HOW TO CHOOSE

1. Becoming a Well-Rounded Lawyer2. Resume Management3. Taking Care of Yourself

Becoming a Well-Rounded Lawyer• Administrative Law: • Business Associations: • Evidence: • Federal Income Tax I:• Substantive Criminal Law: • Trusts & Estates: • U.S. Constitutional Law II: • At Least One Comparative/International Course (E.g.,

International Law, Comparative Law, International Business Transactions)

• At Least One Course Addressing a Complex Statute: (E.g., Commercial Law, Bankruptcy, Environmental Law, Employment or Housing Discrimination)

Becoming a Well-Rounded Lawyer

The Bar Exam: Becoming a Practicing Lawyer

• Bar Review Courses Will Give You Version You Need for Bar

• Mildly Helpful to Have Had the Material Before

• Matters Less the Better You Are at Law School Exams

RESUME MANAGEMENT

• Preparing for a Specialty Area– Check Lists On Registrar’s Page– Not a College Major

• Putting Yourself in the Best Light– Alternate Forms of Evaluation

• Writing Papers• Lawyering Skills

– Schedules That Facilitate Your Doing Well

TAKING CARE OF YOURSELF

• Balance in Course Selection– # of Exams or Papers– Likely Size of Classes– One Subject You Really Want to Take

• Comfortable Daily/Weekly Schedule• Choose Professors Rather Than Course Titles

– Check course evaluations if available

FINAL POINTS

• There’s likely to be a lot of Wait List movement this fall

• Employers Care Much Less Than You’d Imagine

• Talk to Me & Other Faculty

Happy Holidays!

legislative history last statutory technique in course. common to look at: – statements from floor...

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