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Full-Text Articles in Law
When Good Enough Is Not Good Enough, Karl Stampfl
When Good Enough Is Not Good Enough, Karl Stampfl
Michigan Law Review
According to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction-noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others-are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken-unless, of course, it is not. In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the …
Inside Agency Preemption, Catherine M. Sharkey
Inside Agency Preemption, Catherine M. Sharkey
Michigan Law Review
A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …
Text(Plus-Other-Stuff)Ualism:Textualists' Perplexing Use Of The Attorney General's Manual On The Administrative Procedure Act, K. M. Lewis
Michigan Journal of Environmental & Administrative Law
Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach …