Use Legislative Simulation as a Teaching Tool
by
Ronald Benton Brown

After a hiatus of about ten years, I started teaching Legislation again in 1996. I chose Popkin's MATERIALS ON LEGISLATION: POLITICAL LANGUAGE AND THE POLITICAL PROCESS because I liked its focus on statutory interpretation that I thought would interest students, even if they had no interest in becoming involved with a legislature. Of course, studying statutory interpretation would inevitably lead into the study of the legislative process. I was, however, concerned that they might find the readings too abstract and dry. My solution was to plan a legislative simulation. Consistent with the approach of the book, students would experience both roles, law making and law interpreting. Thus, I planned first to place them in a legislative setting where they would enact a statute, and later place them in the roles of advocate or judge involved in statutory interpretation. My plan was to have them engage in interpreting the very statute they had enacted so they could see the relationship, or lack thereof, between the legislative and the interpretation processes.

Years ago, I had attended an AALS workshop in which Phil Schrag explained the extensive legislative simulation that he was then running at Georgetown. He gave an inspiring talk, but I remembered wondering if the simulation would work if run on a much smaller scale. Before I could deal with that question, I agreed to cede the course to another professor. Now I would need an answer. It was clear to me that I did not have the time or resources to simulate the Congress, or even a state legislature, in a credible manner. I also realized that an even bigger obstacle was subject matter. If the legislature were going to adopt a statute, what would it concern? Topics that I suggested, primarily in the real estate area, got collective groans from the class. I was amazed that they did not want to fix the rule against perpetuities, but forcing my interests on them would have undermined the simulation. I solicited their ideas, but every student's suggestion got a similar negative response. Even in areas in which they admitted having an interest, most students (primarily 2-Ls) felt they lacked sufficient background and could not possibly fix what they did not understand. Shifting the focus to the substantive law underlying a legislative proposal would have been time-consuming and distracting.

Then it occurred to me that our one common area of interest and expertise was the law school itself. I asked them what they would change if they were the law school's legislature, i.e., the faculty. They certainly had some ideas about that! Moreover, they liked taking over the law school, even if only in a simulation. After a hot debate, they decided to reform the grading and examination process. Like a real legislature, there was a time pressure. The session would end in the eighth week of the semester. I warned them that if they failed to adopt a statute, I would have to pick or write one for them to use in the second half of the simulation; no one wanted that to happen.

They attacked the task with gusto. With only a few organizational suggestions from me, they divided up into committees (and subcommittees) and went off to do research. Over the next four weeks, I allocated part of each two-hour class to legislative meetings. The committees exchanged reports and drafts. People lobbied for particular positions. We had a final legislative session in class. The presence of laptop computers greatly simplified keeping track of amendments and the production of a final act. Finally, they adopted a statute. I acted as the clerk of the legislature. They gave me disks with all the reports and the adopted statute so I could make copies for everyone and provide each student with a complete "legislative history."

The next step was for me to examine the statute and devise the problems, i.e., fact patterns in which the application was uncertain. That was less difficult than I anticipated. Over the last three weeks of the semester, we devoted part of each class period to these problems. Students were assigned the roles of advocates and judges. In these roles they used the tools they had learned to interpret the very statute they had enacted. Drafting and enactment proved to be lighter work than the application and interpretation process that forced them to look critically at their own earlier work.

This exercise was very effective at sensitizing them to how difficult it can be for a legislature to foresee problems, even when it is well informed about the subject matter; how difficult it can be to draft a statute; and just how uncertain language can be. Since they had participated in both the enactment and interpretation phases, they could see how the traditional methods might, or might not, lead a judge to what the legislature actually had intended.

This simulation does not introduce students to the ins and outs of Congress or a particular state legislature. It involves a unicameral legislature without established rules or procedures. It does not deal with the threat of an executive veto. But it is not so very unlike many city councils or county commissions. Moreover, it was an effective way to introduce the nature of the enactment and interpretation processes in a limited time and with minimal obstacles. My experience, including comments on student evaluations and conversations with students, convinced me to repeat the simulation in 1998. That year's simulation is already under way, although the class chose an entirely different project: reforming the processes of registering for and adding/dropping courses.