Law Commons^™

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

Of Gangs And Gaggles: Can A Corporation Be Part Of An Association-In-Fact Rico Enterprise? Linguistic, Historical, And Rhetorical Perspectives, Randy D. Gordon

Randy D. Gordon

Over 30 years ago, courts of appeals began to hold that the RICO statute’s definition of association-in-fact enterprise is broad enough to include corporations as constituent members, even though that definition states that such an association is limited to a “group of individuals.” This Article demonstrates why these cases were wrongly decided from a variety of perspectives: linguistic, systemic and consequentialist. It also suggests a strategy for correcting this widespread interpretive error and provides evidence that the Supreme Court may be disposed to agree that the lower courts have uniformly erred.

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

Precedent And Reliance, Randy J. Kozel

Randy J Kozel

Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against adjudicative change. Yet there remains a fundamental question as to why reliance on precedent warrants judicial protection in the first place.

This Article explores the dynamics and implications of precedential reliance. It contends that the case for protecting reliance on precedent is uncertain. There are several reasons why reliance might potentially be worth protecting, but all are subject to serious limitations or challenges. To bolster the …

The Original Conception Of Section 1 And Its Demise: A Comment On Irwin Toy V. A-G Of Quebec, Jamie Cameron

Jamie Cameron

The author submits that the logic and purpose of the Canadian Charter of Rights and Freedom, as it was originally conceived, demand that the substantive rights be given a broad and literal interpretation with limitations imposed exclusively under section 1. This distinction between breach and justification must be maintained to preserve the Charter's integrity. The author suggests that the Supreme Court of Canada's decision in Irwin Toy will only perpetuate the confusion surrounding Charter interpretation. The Court again failed to articulate a concrete conception of section 1 review, and, in obiter dicta, noted that forms of expressive activity having physical …

The Use Of Oecd Commentaries As Interpretative Aids - The Static/Ambulatory-Approaches Debate Considered From The Perspective Of International Law, Maria Hilling, Ulf Linderfalk

Maria Hilling

Since many years, international tax law experts debate the relevance of changes to OECD Commentaries for the purpose of the interpretation of previously concluded tax treaties. Although, generally, most experts seem averse to the idea of an ambulatory approach to the usage of OECD Commentaries, they are reluctant to exclude this idea altogether. Such a position raises an important issue of justification: When exactly should the ambulatory approach be taken? As argued in this essay, the proper answer to this question depends on the particular rule of interpretation justifying the usage of OECD Commentaries in particular cases. If Commentaries are …

Book Review: The History Of Democracy: A Marxist Interpretation By Brian S. Roper, John Passant

John Passant

Brian Roper's book on the history of democracy from a Marxist perspective is an ambitious one. Roper starts with Athens and Rome and then, as capitalism rises, examines the revolutions in England, America and France and after that the 1848 revolutions across Europe. He then looks at the Paris Commune and The Russian Revolution. In doing this, Roper describes three distinct but related forms of democracy - Athenian democracy which was a form of participatory democracy limited to sections of society; liberal representative democracy which, while nominally open to all, is actually limited to operating within narrow propertied confines; and …

Efficient Contextualism, Juliet P. Kostritsky, Peter M. Gerhart

Juliet P Kostritsky

This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are …

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Eric J. Segall

No abstract provided.

Book Review: Policing And The Poetics Of Everyday Life., Rodger E. Broome Phd

Rodger E. Broome

Policing and the poetics of everyday life. Chicago: University of Illinois Press, 2008. 256 pp. ISBN 978-0-252-03371-1 (cloth). $42.00. Policing and the Poetics of Everyday Life is a hermeneutical-aesthetic analysis within a human scientific approach of modern policing in the United States. It is an important study of police-citizen encounters informed by hermeneutic aesthetic thought and the author’s professional experience as a veteran with a Seattle area police department in Washington, USA.

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Jeffrey A. Pojanowski

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

The Limits Of Administrative Guidance In The Interpretation Of Tax Treaties, Michael Kirsch

Michael Kirsch

This Article addresses the increasingly important role of administrative guidance in interpreting the United States' international treaty obligations. The relationship between administrative guidance and treaties raises important issues at the intersection of international law, constitutional law, and administrative law. These issues are explored in the context of the United States' extensive tax treaty network. Tax treaties play an important role in a global economy, attempting to reconcile the complex and ever-changing internal tax laws of different countries. The Treasury Department is considering the increased use of administrative guidance to interpret the meaning and application of tax treaties, particularly in response …

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

William K. Kelley

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

Corrections Day, John Copeland Nagle

John Copeland Nagle

In July 1995, the House of Representatives established a Corrections Day procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House. This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines mistake. Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the …

Crushing Animals And Crashing Funerals: The Semiotics Of Free Expression, Harold Anthony Lloyd

Harold Anthony Lloyd

This article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and to verbally attack parents of dead soldiers as part of purportedly-public expression). This article maintains that a better understanding of semiotics (the theory of signs) exposes the flaws in both decisions and bolsters the arguments of the lone dissenter in both cases, Justice …

Truth In Context: Sketching A (New) Historicist Legal Pedagogy, Randy D. Gordon

Randy D. Gordon

Customary Rules Of Interpretation In The Practice Of Wto Dispute Settlement Bodies, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

A Consequentialist Approach To Interpretation, Probabilistic Mechanisms, And Risk: Let’S Not Limit Courts’ Techniques Of Common Law Adjudication; Rethinking Judicial Intervention From Contracts To The Chrysler Bankruptcy, Juliet P. Kostritsky

Juliet P Kostritsky

Employing an economics-based consequentialist approach to contract interpretation (focusing on the prospective effect and the factors that might justify intervention) this Article attempts to identify the precise parameters of an optimal framework for contract interpretation. Such a framework would seek to maximize gains from trade. The issue in such cases is always, given the words the parties used, what is the best (surplus maximizing) interpretation of the bargain. Courts can achieve that interpretation by, in part, minimizing the interpretive risk that parties face when they draft an express contract but fail to completely resolve all possible issues. This Article uses …

Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine

Samuel J. Levine

In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …

Enforceability Of Forum Selection Clauses: A "Gallant Knight" Still Seeking Eldorado, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

Forum selection clauses (“FSC”) are very common in both domestic and international contracts. In Bremen v. Zapata Off-Shore Company (“Bremen”), 407 U.S. 1 (1972), the Supreme Court established basic standards for the enforceability of such clauses. Relying on Bremen standards, courts today generally enforce FSC. However, the vagueness of Bremen standards leaves room for a party to resist enforcement. The result may be delay and inefficiency. The Supreme Court has said that arbitration clause is a form of FSC, but it has applied different standards for the enforcement of arbitration clauses from FSC. This article argues for a reformulation of …

Express Warranty As Contractual - The Need For A Clear Approach, Sidney Kwestel

Sidney Kwestel

No abstract provided.

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Thomas A. Schweitzer

No abstract provided.

Judicial Discretion In Constitutional Cases, Todd E. Pettys

Todd E. Pettys

A damaging dichotomy is hindering the nation’s ability to talk intelligently and constructively about the constitutional work of the courts. The “legitimacy dichotomy” holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage …

Common Law Constitutional Interpretation: A Critique, Brannon P. Denning

Brannon P. Denning

This is a review of David Strauss, The Living Constitution (2010). In it, I critique his claim that common law constitutional interpretation is a superior alternative to originalism.

Negotiating Federalism, Erin Ryan

Erin Ryan