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| LEGISLATION FINAL EXAMINATION General Instructions 1. Be sure to place your exam number/PIN number on all bluebooks. 2. This is a three-hour, open-book examination. You may consult only the assigned text, class handouts, your class notes, and your own outline (including an outline that you prepared with your study group, if any). 3. The exam consists of three parts. All three parts should be answered in a
bluebook. b. Question III consists of ten short-answer questions. Question III has a suggested time of 45 minutes; it is worth one-quarter of your exam grade. 4. If you believe that insufficient facts are provided in order to resolve an issue, identify those additional facts that would be necessary for your analysis. 5. Assume, unless the question states otherwise, that the relevant jurisdiction is federal and that reference to "the court(s)" is to federal courts. Question I (60 minutes) You are limited to one blue book for Question I. You may write on one side of a page only, which gives you 16 pages on which to write. You should write on every line, rather than every other line. Inserts from facing pages and marginalia should be kept to a minimum, as they count against the 16-page limit. Typists: The 16-page blue book limit translates into a 2700-word limit for each question, based upon my word-count of 10 randomly chosen blue books. If you are using a word processor that has a word-count feature, the 2700-word limit should be your guide. As a rough guide, 2700 words translates into the following (assuming one-inch margins all around and double-spacing): 5.5 pp. -- CG Times 12 pt. I reserve the right either to take off points for excessively long answers or to ignore all discussions beyond the 2700-word limit. Facts While Douglas Baird, Jr., (Baird) was the Sheriff of Davis County, Texas, R.H. Coase (Coase) was a federal prisoner housed at the Davis County Jail pursuant to an agreement between the United States Marshals Service and Davis County. As Sheriff of Davis County, Baird was in charge of the operation of the Davis County Jail. Davis County Jail receives federal assistance in the form of (1) a Cooperative Agreement Plan (CAP), which provided an $850,000 grant for construction at the Davis County Jail, and (2) an Intergovernmental Service Agreement (IGA), which provided that Davis County Jail would house federal prisoners in exchange for their costs. IGA and CAP were entered into in 1984 to establish and govern relations between the U.S. Marshals Service and Davis County. CAP provided for "Federal participation in the funding of local governmental jail construction, renovation or improvement programs" and was "predicated upon the Federal government's requirement for detention space and services and the local government's provision of such services." Coase was housed at the Davis County Jail pursuant to IGA. After observing that several of the federal prisoners were receiving special treatment at the jail, Coase entered into an agreement with Baird to receive special treatment in exchange for monetary consideration. Specifically, Baird allowed Coase to have conjugal visits with his wife and girlfriend in exchange for $6,000 a month and $1,000 per visit. These visits took place in the jail library and eventually in Baird's office. Baird usually guarded his office door when Coase and his wife or girlfriend were visiting. However, his deputy (who is also charged in the indictment) supervised the visits on several occasions. Baird is charged with bribery under 18 U.S.C. § 666(a)(1)(B), which prohibits theft and bribery by officials of state and local agencies that receive federal funds. Section 666 applies to an "organization, government, or agency [that] receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." 18 U.S.C. § 666(b). The section under which Baird is charged punishes anyone who: (a) (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof -- . . . . (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency, involving anything of value of $5,000 or more . . . . 18 U.S.C. § 666(a)(1)(B). Baird argues that the term "anything of value of $5,000 or more" does not apply to the conjugal visits at issue in this case. The Senate Report on the bill that eventually was enacted in 1984 as § 666 (S. Rep. No. 225, 98th Cong., 2d Sess. (1984)) stated that: This bill is designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program. . . . Title 18 of the United States Code currently covers both theft and bribery type offenses. With respect to theft, 18 U.S.C. § 665 makes theft or embezzlement by an officer or employee of an agency receiving assistance under the Job Training Partnership Act a Federal offense. However, there is no statute of general applicability in this area, and thefts from other organizations or governments receiving Federal financial assistance can be prosecuted under the general theft of Federal property statute, 18 U.S.C. 641, only if it can be shown that the property stolen is property of the United States. In many cases, such prosecution is impossible because title has passed to the recipient before the property is stolen, or the funds are so commingled that the Federal character of the funds cannot be shown. This situation gives rise to a serious gap in the law, since even though title to the monies may have passed, the Federal Government clearly retains a strong interest in assuring the integrity of such program funds. Indeed, a recurring problem in this area (as well as in the related area of bribery of the administrators of such funds) has been that State and local prosecutors are often unwilling to commit their limited resources to pursue such thefts, deeming the United States the principal party aggrieved. With respect to bribery, 18 U.S.C. 201 generally punishes corrupt payments to Federal public officials, but there is some doubt [due to a split in the circuit courts of appeals] as to whether or under what circumstances persons not employed by the Federal Government may be considered as a "public official" under the definition in 18 U.S.C. 201(a). [T]he purpose of this section [is] to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery. S. Rep. No. 225, at 3510, 3511. (18 U.S.C. § 201 reads in part: "Whoever, being a public official . . . accepts . . . anything of value . . . for being influenced in the performance of any official act . . . shall be . . . imprisoned . . . .") The Senate Report also stated that Congress intended 18 U.S.C. § 666 to encompass behavior in three specific cases. See S. Rep. No. 225, at 3511 (citing United States v. Hinton, 683 F.2d 195 (7th Cir. 1982) (involving head of a nonprofit corporation organized to administer federal funds from a HUD program who solicited money in exchange for housing rehabilitation contracts funded by HUD); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving head of state administrator of funds from a CETA program who solicited money in exchange for preferential treatment under the program); United States v. Del Toro, 513 F.2d 656 (2d Cir. 1975) (involving bribery of city administrator of funds from HUD program). Courts have interpreted the term "anything of value" in other criminal statutes broadly to include intangibles. See United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992) ("Congress' frequent use of 'thing of value' in various criminal statutes has evolved the phrase into a term of art which the courts generally construe to envelope both tangibles and intangibles"), cert. denied, 507 U.S. 1034 (1993); United States v. Picquet, 963 F.2d 54, 55 (5th Cir.) (holding that the term "anything of value" in 18 U.S.C. § 1029(a)(2) should be interpreted broadly), cert. denied, 506 U.S. 902 (1992). See also United States v. Williams, 705 F.2d 603, 622-23 (2d Cir.) (holding that term "anything of value" in 18 U.S.C. § 201(c) and 18 U.S.C. § 201(g) can apply to stock that, although it had no actual value, the defendant expected to have value), cert. denied, 464 U.S. 1007 (1983); McDonald v. State, 57 Ala. App. 529, 329 So. 2d 583, 587-88 (1975) (holding that sexual intercourse or the promise of sexual intercourse is a "thing of value" under state bribery statute), cert. denied, 429 U.S. 834 (1976); Scott v. State, 107 Ohio St. 475, 141 N.E. 19, 22-23 (1923) (same). During the House debate on the Senate bill, Rep. Berkenstock (D-Ill.), the chairman of the Committee on Appropriations, which had held hearings on the bill and had reported the bill out for a floor vote, stated: "I wish to make it clear that this is not a ‘good government' law for state and local governments that happen to receive federal funds. It reaches only those acts of theft and bribery that involve, directly or indirectly, federal program funds, or the integrity of the programs for which those funds are paid to state and local governments. We do not, with this bill, intend to displace the law-enforcement role of the States with respect to official corruption that does not bear upon the integrity of federal funds or programs." An amendment to that effect was offered by Rep. Blucher (R.-Mo.), the Minority Whip, and it was defeated by voice vote. Identify and analyze all of the arguments likely to be put forward by counsel for Baird, as well as those of the U.S. Department of Justice. Indicate which side has, in your opinion, the stronger case. Question II (45 minutes) Consider the following quotation from a speech delivered at numerous law schools by a legislative-history skeptic in the mid-1980s: As an intermediate federal judge, I can hardly ignore legislative history when it will be used by the Supreme Court. But it seems to me we can at least be more selective in the sorts of legislative history we employ -- requiring some indication that it at least genuinely reflects the intent of one of the houses of Congress. For that purpose, I suppose I would rank most highly legislative history consisting of [insert A] . I suppose next to that would be [insert B] . At the bottom of my list I would place what hitherto seems to have been placed at the top: [insert C] . Describe how you would fill in the blanks. Explain your choices. Question III (45 minutes) A. Briefly respond to each of the requests below in a maximum of three sentences. 1. Assuming that the canon "legislative inaction implies acquiescence" applies with greater or lesser force depending upon the circumstances, describe circumstances that would justify a strong inference of acquiescence. 2. Using public-choice theory as your guide, give an example of a legislative initiative with distributed costs and concentrated benefits and describe the probable legislative outcome. 3. Madison's argument that due deliberation is well-served by a strung-out legislative process is most in accord with which 20th-century theory of "legisprudence"? B. State whether each of the following statements is true or false and briefly explain why (in not more than three sentences). 4. On March 1, 1997, the Texas Legislature passed S.B. 21, which collected various statutes, rewrote them into a new code, adopted the new code, and repealed the old statutes, including Rev. Civ. Stat. art. 4495d-1. On April 1, 1997, the legislature amended art. 4495d-1, despite the fact that 4495d-1 was repealed one month earlier. Because the "target" law was a nullity on April 1, its amendment is a nullity, too. 5. Plaintiffs are consumers of electronic entertainment equipment who have sued "The Big Three" manufacturers for antitrust violations allegedly arising out of various joint ventures among the defendants for the period January 1, 1994 to December 31, 1996. Suit was commenced on January 2, 1997. A 1963 decision of the Supreme Court interpreted the Sherman Antitrust Act as not encompassing private consumer claims. If, on May 31, 1997 (while the case was still pending in District Court), the Supreme Court handed down a decision that overrules its 1963 holding and interprets the Sherman Act to permit consumer claims, that holding would apply to the claims in this case, unless the Court explicitly held otherwise; but if Congress were to amend the Sherman Act, effective May 1, 1997, to provide for consumer claims such as these, the amendment would not apply to this case, absent express language to the contrary. 6. The Texas legislature is impressed by the results obtained by Illinois in the years that state has had a concealed-assault-weapon law. Accordingly, Texas enacts the Illinois law lock, stock, and barrel (n.p.i.). In accordance with the traditional rule on the subject, Texas will be presumed to adopt the authoritative pre- and post-enactment interpretations of the Illinois Supreme Court unless the legislature enacts a clear statement that affirmatively indicates a contrary intent. 7. Both houses of Congress pass a bill that creates a new national volunteer program. The bill also contains a provision -- Title V -- that requires an extra year of national service for every year that a former college student is in default on his or her college loans. If the president objects to this provision, he may excise Title V using the line-item veto mechanism. (Assume for purposes of this question that the line-item veto law has not been stayed pendente lite by the federal district court.) 8. "Riders" -- amendments seeking to add irrelevant (nongermane) matter to a bill -- are prohibited by the standing rules of the U.S. House of Representatives but not the U.S. Senate, which gives Senators the ability to obtain full-Senate consideration of pet bills that were never even reported out of committee. 9. The First Amendment affords campaign expenditures less protection than campaign contributions. 10. A Medicare statute prohibits physicians "and their immediate family" from owning an investment interest in an entity to which the physician refers patients for designated health services. The U.S. Department of Health and Human Services, which has statutory authority to issue regulations pursuant to this statute, defines "immediate family" to include all persons to whom the physician is related, by blood or marriage, in the first degree of consanguinity. Although a district court would be bound to defer to DHHS' interpretation, a court of appeals and the Supreme Court would not, since legal questions are reviewed de novo.
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