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On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
Notre Dame Law Review
In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …
Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
Sean Farhang
The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …
Digital Evidence And The Adversarial System, Colton Fehr
Digital Evidence And The Adversarial System, Colton Fehr
Canadian Journal of Law and Technology
Scholars have observed that the adversarial system tends to provide courts with only a ‘‘small snapshot of the technological whole,” which in turn forms the record upon which broader legal pronouncements occur. As a result, they contend that legislatures should be more proactive in making rules governing complex and rapidly advancing technologies, and that courts must show deference to these rules. Other scholars retort that, in practice, legislatures often fail to update obviously flawed and outdated privacy provisions. Whether due to special interest influence, majoritarian dislike of criminal suspects, or other institutional constraints, legislative responses have been wanting. As such, …