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COURSE AIMS
This course concerns legislative practice and procedure – how the legislature
should identify and organize its members, select its officers and employees, conduct its
internal business and affairs, carry out its legislative tasks, seek information, select which
instruments to employ to memorialize its measures, and communicate with the outside
world, including the other branches of the government. The student should exit the class
with a knowledge of how to advise a presiding officer in regard to the conduct of a
meeting under a legislative body’s standing orders, and coordinate statutory and
constitutional provisions – or, at the very least, knowledge of where to find persuasive
law and authority in regard to such questions. The course materials will concern U.S.
federal and state legislatures as well as the legislatures of Britain and the Commonwealth.
The course will also stress that Commonwealth and American legislative traditions
encompass considerable variation in regard to the basic policy choices discussed here.
COURSE OUTLINE
Week 1: The Enrolled Bill Rule and the Justiciability of Legislative Acts
United States v. Munoz-Flores, 495 U.S. 385 (1990)
Field v. Clark, 143 U.S. 649 (1892)
Public Citizen v. U.S. Dist. Court for Dist. of Columbia, 486 F.3d 1342
(D.C. Cir. 2007), aff’g 451 F. Supp. 2d 109 (D.D.C. 2006)
Attorney General for Western Australia v. Laurence Bernhard Marquet,
Clerk of the Parliament of Western Australia, [2003] HCA 67, 202
ALR 233 (High Court of Australia 2003)
Victoria v. Commonwealth, [1975] 134 CLR 81 (High Court of Australia)
Purushothaman v. Kerala, [1962] A.I.R. 694 (Sup. Ct. India)
Simpson v. Attorney General, [1955] N.Z.L.R. 271 (Sup. Ct. N.Z. 1954)
Jackson v. Her Majesty’s Attorney General, [2005] UKHL 56
Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?
Rethinking the “Enrolled Bill” Doctrine, 97 GEO. L.J. 323 (2009)
Seth Barrett Tillman, Noncontemporaneous Lawmaking,
16 CORNELL J.L. & PUB. POL’Y 331 (2007)
Aaron-Andrew P. Bruhl, Response, Against Mix-and-Match Lawmaking,
16 CORNELL J.L. & PUB. POL’Y 349 (2007)
Seth Barrett Tillman, Defending the (Not So) Indefensible: A Reply to
Professor Aaron-Andrew P. Bruhl, 16 CORNELL J.L. & PUB. POL’Y
363 (2007)
Week 6: Filibusters, Cloture, and the Motion to Vote on the Previous Question
United States Senate Rules
SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE?
FILIBUSTERING IN THE UNITED STATES SENATE (1997)
SENATOR HENRY CABOT LODGE, SR., Parliamentary Obstruction in the
United States, in HISTORICAL AND POLITICAL ESSAYS 169
(Cambridge 1892)
SENATOR HENRY CABOT LODGE, SR., Parliamentary Minorities, in
HISTORICAL AND POLITICAL ESSAYS 180 (Cambridge 1892)
GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND
LAWMAKING IN THE U.S. SENATE (2006)
Aaron-Andrew P. Bruhl, Burying the "Continuing Body" Theory of the
Senate, 95 IOWA L. REV. 1401 (2010)
Catherine Fisk & Erwin Chemerinski, The Filibuster, 49 STAN. L. REV.
181 (1997), and responses thereto
See generally MASON’S MANUAL OF [STATE] LEGISLATIVE PROCEDURE
(United States)
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Week 7: Quorums
United States House and Senate Rules, and related statutes
Annals of Congress & Journal of the House reporting quorum votes and
determinations in the First Federal Congress and during the Civil
War
THOMAS JEFFERSON, MANUAL OF PARLIAMENTARY PRACTICE (1812)
THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (1781)
ERSKINE MAY PARLIAMENTARY PRACTICE (William McKay et al., eds.,
23d ed. 2004)
MASON’S MANUAL OF [STATE] LEGISLATIVE PROCEDURE
(United States)
ODGERS’ AUSTRALIAN SENATE PRACTICE
John Bryan Williams, How to Survive a Terrorist Attack: The
Constitution’s Majority Quorum Requirement and the Continuity of
Congress, 48 WM. & MARY L. REV. 1025 (2006)
See generally ADRIAN VERMEULE, MECHANISMS OF DEMOCRACY (2007)
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Week 12: New Governments, and Territories Which Become Nations, States, and
Provinces
The Insular Cases, United States Supreme Court
U.S. federal cases discussing appellate jurisdiction where trial court
decision arose in a territorial courts, but on appeal after statehood
American and Commonwealth organic acts granting self-government
within a federal system and/or granting outright independence, and
cases discussing such grants
Gary Lawson & Guy Seidman, When Did the Constitution Become Law?,
77 NOTRE DAME L. REV. 1 (2001)
Vasan Kesavan, Response, When Did the Articles of Confederation Cease
to Be Law?, 78 NOTRE DAME L. REV. 35 (2002)
Gary Lawson & Guy Seidman, Reply, The First “Establishment” Clause:
Article VII and the Post-Constitutional Confederation, 78 NOTRE
DAME L. REV. 83 (2002)
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ERSKINE MAY PARLIAMENTARY PRACTICE (William McKay et al., eds., 23d ed. 2004)
GREGORY TARDI, THE LAW OF DEMOCRATIC GOVERNING – PRINCIPLES AND THE LAW OF
DEMOCRATIC GOVERNING – JURISPRUDENCE (2004)
GRADE
Grade will be based on a paper between 15 and 30 pages long, including footnotes, and
on in-class participation (including a formal presentation)
CITATION
Seth Barrett Tillman, Course Syllabus: Issues in American and Commonwealth
Legislative Practice & Procedure (Nov. 2010), available at
http://works.bepress.com/seth_barrett_tillman/210/, also available at
http://ssrn.com/abstract=1707048. Contact: sbarrettillman@yahoo.com.