Judicial and Congressional Review of Statutory Rules

Courts are the ultimate arbiter of justice in American law. As a result, when you do legal research you need to check how the courts have interpreted, applied or reviewed that statute, administrative rule, or case. However, sometimes, like in the example below, courts may be silent. However, even in that situation you will need to check if there is related case law, and to note that your search produced no results.

In an effort to change the culture of alcohol consumption on college campuses, in December 1997, in the U.S. House of Representatives, then Representative Joseph P. Kennedy II proposed a resolution aimed at changing the campus culture and at supporting healthier student choices about alcohol. That was the “Collegiate Initiative to Reduce Binge Drinking,” House Resolution 321, and it called on all college and university administrators to adopt a code of principles designed to create a campus environment that de-emphasizes the role of heavy drinking in student life. Initially, the resolution was advertised in Alcohol Policies Project, as not creating “a legally binding requirement for college campuses, and as not requiring any formal voting.”

Soon afterward a Senate Resolution was introduced, and a legislative measure followed suit. Faster than it takes Congress to solve budgetary crises, Congress passed the “Collegiate Initiative To Reduce Binge Drinking and Illegal Alcohol Consumption,” codified as Higher Education Assistance Act20 U.S.C. § 1011h(2000).
No one challenged this act in court. A lot of good-will press coverage ensued. The students’ response to the legislative proposal was quick and swift. It criticized Congress’s attempt to change college culture through legislation. It pointed out its limits: all this legislation did was to outline ways to fight binge drinking in its manifestations, while it failed to address its societal or cultural causes.

The legislation identified the national high drinking age as being the culprit. Some may say that there is no way to enforce that piece of legislation, and there is no clear data to gauge whether it had any real effect in making students stop heavy drinking-defined according to the 1997 study published by Harvard’s School of Public Health. Furthermore, the collegiate resolution notes that:

  • many college presidents rank alcohol abuse as the number one;
  • alcohol is a factor in the three leading causes of death for 15-24 year olds;
  • alcohol is involved in a large percentage of campus rapes, violent crimes, student suicides, and fraternity “hazing” drinking;
  • almost half (44 percent) of all students qualify as binge drinkers; and
  • *heavy drinking causes problems for students who drink and has “second hand” effects for other students. Heavy drinking is defined as “the consumption of at least five drinks in a row for men or four drinks in a row for women.”

This legislation encountered only slight initial opposition. Congress passed it as a sign that the existing culture of a well-identified segment of the population needed to be changed. It may be arguably inept, but there is no requirement under the rule of law that all American legal norms be efficient. Furthermore, this statute promotes American cultural values, such as drinking responsibly.

Perhaps because it is a noncontroversial piece of legislation, or because it is hard to violate it, its prescriptions are not mandatory, no court has applied this statute.
Thus, there is no court decision interpreting this statutory language, explaining its meaning, and thus becoming intrinsically connected with the statute. Had a court decision existed in connection to this statute, then any statutory research involving it would have included the respective court decision.

In conclusion, the rule of statutory research is simple: finding the applicable statute is never the entire answer to a statutory research question. The correct and comprehensive answer will have to include the cases applying that statute as well. The following example should make this research point more salient.

In 1996, Congress passed the //Communications Decency Act (CDA)//, which criminalized using any computer network to display “indecent” material unless the content provider uses an “effective” method to restrict access to that material by anyone under the age of 18. The U.S. Supreme Court, in Reno v. American Civil Liberties Union, declared the statute unconstitutional. In response to the Court’s decision, in 1998, Congress passed the //Child Online Protection Act (COPA//) in what can be called a follow-up to the Supreme Court’s invalidation of CDA. COPA, unlike CDA, targeted only commercial Web sites and only indecent material that was “harmful to minors.” Nevertheless, in //Ashcroft v. American Civil Liberties Union//, 535 U.S. 564 (2002), the Court did not give its stamp of approval to the revamped legislative version, and enjoined the state from enforcing it while it remanded the case for further examination by the lower court. When the lower court’s opinion reached the Supreme Court in Ashcroft, the Court held that “the statute likely violates the First Amendment” and, again, refused to enforce it.

Certainly, the CDA/COPA example does not reflect the average situation. Usually Congress accepts the Supreme Court’s interpretations of its statutes and stops there. However, this example showed yet again that due to its position at the pinnacle of the American federal legal system, no legal research is ever finished without a comprehensive search for a Supreme Court decision on point. Of course, often such a decision does not exist. Nevertheless, your research needs to include this part of the process as well.