Saxe’s Aphorism (Book Review of Legislation and Regulation by John F. Manning and Matthew C. Stephenson. Foundation Press 2010. Pp. 1040)
31 Pages Posted: 6 Sep 2011 Last revised: 1 Nov 2011
Date Written: September 6, 2011
If John Godfrey Saxe was right that “Laws, like sausages, cease to inspire respect in proportion as we know how they are made” then you should think twice about reading John Manning and Matthew Stephenson’s book, Legislation and Regulation. Manning and Stephenson are both Harvard Law School professors, and leading scholars in statutory interpretation and administrative law, respectively. They have combined their efforts to produce a book that covers the whole range of the federal lawmaking process. Legislation and Regulation has become an immediate hit in American law schools.
My review of Legislation and Regulation begins with an overview of the book’s approach and its contents. This overview demonstrates that the book achieves precisely the understanding of the lawmaking process against which Saxe warned. The book provides an extremely thorough and thought-provoking account of the theory and practice of statutory interpretation, the status and role of administrative agencies, and the rules governing the relationship between agency decisions, congressional statutes, and judicial review.
Part II of this review asks whether Saxe was right. Do we think less of our laws once we know how they are made? To answer this question, I use lessons from Legislation and Regulation to examine the Patient Protection and Affordable Care Act (PPACA), which was enacted by Congress in March 2010, just before the book was published. The PPACA generated enormous controversy with respect to both its substantive content, and the process by which it was passed. Its champions saw it as the fruition of decades of efforts to make heath care available to more Americans. Its opponents attacked it as an unwanted government takeover of the health care system - a claim that ultimately gave rise to the Tea Party. The process through which the PPACA was enacted featured filibusters, the “Cornhusker Kickback,” the surprise winner of a special Senate election in Massachusetts, and numerous disputes about how the law should be interpreted. The most controversial assertion, embraced by Sarah Palin on her Facebook profile, charged that the law would encourage “death panels,” by which lawmakers and doctors alike could decide which elderly patients should be allowed to live, and which should be left to die. The difficulty in understanding the meaning of the proposed law while Congress debated it was highlighted by Speaker of the House Nancy Pelosi’s statement that “we have to pass the bill so that you can find out what is in it.” This book review examines the dispute concerning the application of the PPACA in Part II from the perspective of the statutory interpretation and administrative law lessons contained in Legislation and Regulation.
Regardless of its substantive or procedural merits, the enactment of the PPACA demonstrated the need for a better understanding of the process of U.S. lawmaking in the twenty-first century. Few laws garnered as much public attention, and few laws are likely to demand as many legal services. Yet students in the traditional first-year law school curriculum would have few opportunities to know anything about the issues surrounding the PPACA. The health care law may generate a discussion in a constitutional law course, or perhaps offer a few examples in civil procedure, but it is unlikely to fit within the subjects discussed in other first-year courses, such as criminal law, property, or torts.
Keywords: legislation, regulation, John Manning, Matthew Stephenson, John Godfrey Saxe, Patient Protection and Affordable Care Act, PPACA, health care, statutory interpretation, death panels, Sarah Palin
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