Law Commons^™

The Hypocrisy Of The Acquiescence Canon, Blair C. Warner

Blair C Warner

The Court applies the acquiescence canon to infer that an agency or judicial statutory interpretation is correct when followed by Congressional inaction. This Article will argue that this practice is based on a number of faulty assumptions. Moreover, the canon is applied inconsistently and creates perverse incentives for the legislature. The Article will then explore the Court’s guidance to lower courts against deriving similar inferences from the denial of certiorari, a similar form of inaction. Drawing parallels between Congress and the Court, and noting the many reasons why conclusions should not be drawn from apparent inactivity, this Article will conclude …

Slides: The Promise And Peril Of Oil Shale: Federal Law And Policy, David Bernhardt

The Promise and Peril of Oil Shale Development (February 5)

Presenter: David Bernhardt, Brownstein Hyatt Farber Schreck, Denver, CO

13 slides

Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson

Reviews

Any attempt to analyze China’s comprehensive labor reform over the past three decades faces at least two dilemmas. First, the analyst must confront the task of describing how the Chinese state has dismantled the “work unit” (or danwei)- based “iron rice bowl” employment and entitlements system, replacing that comforting but low-production employment and social security scheme with formally-proclaimed legal rights and institutions apparently designed to protect employees in a functioning labor market. Second, the analyst must track how the state’s commitment (at all levels of government) to implementation of proclaimed legal and institutional protections has waxed and waned, based upon …

The 1909 Copyright Act In International Context, Daniel Gervais

Santa Clara High Technology Law Journal

No abstract provided.

Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan

Publications

No abstract provided.

Raising The Dead?: The Lilly Ledbetter Fair Pay Act, Charles A. Sullivan

Charles A. Sullivan

If applied literally, the Lilly Ledbetter Fair Pay Act has the potential to radically change the landscape for litigating claims under Title VII and other antidiscrimination laws. While limited to discrimination in compensation, as opposed to discrimination in other terms and conditions of employment, the FPA removes the statute of limitations not only for compensation decisions per se but for any “other practice” affecting compensation. Further, the new law is explicitly retroactive. Thus, a failure to promote plaintiff twenty years ago would seem to be actionable today, so long as the nonpromotion has an effect on current compensation. While the …

Slides: Rapanos And The Courts: Navigating Through The Fog, Jim Murphy

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Jim Murphy, Wetlands and Water Resources Counsel, National Wildlife Federation, VT

25 slides

State Constitutional Limits On New Hampshire's Taxing Power: Historical Development And Modern State, Marcus Hurn

The University of New Hampshire Law Review

[Excerpt] "The New Hampshire Constitution is, in most of its fundamental parts, very old. It is long (nearly 200 articles) and wordy, even by the standards of the eighteenth century. It expresses essential principles in more than one place, in more than one way, and in language that to modern eyes is more suited to political philosophy than to positive law. Most of it was copied from the original Massachusetts Constitution, itself based on a draft by John Adams. However, there is no other state in the union with a structure of taxing powers and limits comparable to New Hampshire‘s."

Transnational Families In Crisis: An Analysis Of The Domestic Violence Rule In E.U. Free Movement Law, Adam Weiss

Michigan Journal of International Law

This Essay analyzes a concrete rule of European law that has emerged to address the problem of domestic violence within certain transnational families. The domestic violence rule is found in Article 13 of the European Community Free Movement Directive (the Directive), legislation that governs the rights of E.U. citizens and their family members to enter and reside in other E.U. Member States.6 The rule affects the rights of a discrete group: non-E.U. ("third-country national") family members of migrant E.U. citizens, that is, E.U. citizens who have moved to another E.U. Member State (the "host State") to exercise residence rights there. …

Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller

GW Law Faculty Publications & Other Works

We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative …

The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Distlear

Faculty Scholarship

Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on …

Hamdan V. Rumsfeld: A Legislative History Smorgasbord, John J. Miller

John J. Miller II

The Supreme Court in Hamdan v. Rumsfeld denied the government’s motion to dismiss the habeas appeal of Hamdan, bin Laden’s driver, who was being held at Guantanamo Bay. The majority, led by Justice Stevens, determined that the recently passed Detainee Treatment Act (DTA), which eliminated federal court jurisdiction to hear habeas appeals from detainees held at Guantanamo Bay, did not apply to pending cases, like Hamdan’s. This interpretation was supposedly strongly buttressed by the legislative history of the DTA. This essay outlines the arguments of the opponents and proponents of the use of legislative history, and then juxtaposes these arguments …

Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring

David S. Law

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a statute. We …

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison

Articles

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of “technological protection measures” in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses.

While hailed as a victory by the software and entertainment industries, the academic and scientific communities ties have been far less enthusiastic. The DMCA’s goal of combating piracy is …

A Good Idea Stretched Too Far: Amending The General Aviation Revitalization Act To Mitigate Unintended Inequities, Kerry V. Kovarik

Seattle University Law Review

This Comment will examine the congressional intent that shaped GARA, evaluate the equitable implications of the statute's drafting language, discuss its significant judicial interpretations, and explore the author's recommendations aimed at minimizing GARA's inequities without negating its positive aspects. Part II begins with an analysis of GARA's legislative history, identifies stakeholders and their arguments, and examines issues given insufficient consideration by Congress. Part III assesses how GARA actually affected the aviation market when compared to the stakeholders' predictions. Part IV will survey a selection of important judicial decisions interpreting GARA. Finally, Part V evaluates the inequities created by the statute …

Stoneridge Investment Partners V. Scientific-Atlanta: The Political Economy Of Securities Class Action Reform, Adam C. Pritchard

Articles

I begin in Part II by explaining the wrong turn that the Court took in Basic. The Basic Court misunderstood the function of the reliance element and its relation to the question of damages. As a result, the securities class action regime established in Basic threatens draconian sanctions with limited deterrent benefit. Part III then summarizes the cases leading up to Stoneridge and analyzes the Court's reasoning in that case. In Stoneridge, like the decisions interpreting the reliance requirement of Rule 10b-5 that came before it, the Court emphasized policy implications. Sometimes policy implications are invoked to broaden the reach …

Liberal Justices' Reliance On Legislative History, James J. Brudney, Corey Distlear

Faculty Scholarship

This Article presents a strong case against the conventional wisdom that legislative history is a "politicized'" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Michigan Law Review

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor …

Slides: The Future Of Oil And Gas Development On Federal Lands, Mike Chiropolos

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mike Chiropolos, Lands Program Director, Western Resource Advocates

44 slides

Interpreting Congressional Silence: Cafa's Jurisdictional Burden Of Proof In Post-Removal Remand Proceedings, Jeffrey L. Roether

Fordham Law Review

No abstract provided.

Judicial Interpretation In The Cost-Benefit Crucible, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

This article responds to Professor Adrian Vermeule's new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs …

The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow

Articles

In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …

Crimes And Offenses Forgery And Fraudulent Practices: Enact The Georgia Child, Family, And School Communications Protection Act; Provide A Short Title; Provide For Definitions; Create A Service To Protect Child, Family, And School Communications; Provide Conditions For Registration; Provide For A Fee; Provide For Procedures; Provide For Verification From The Contents Of The Service; Prohibit The Transmission Of Certain Messages; Provide For Exceptions; Prohibit The Release Of Certain Information; Shield Certain Information From Public Inspection; Provide For A Penalty; Provide For Civil Actions; Provide For Related Matters; Provide For An Effective Date; Repeal Conflicting Laws; And For Other Purposes, Frank Cobia

Georgia State University Law Review

The bill as passed by the Senate would create a registry of electronic contact points for children and prevent anyone wishing to send messages advertising content that is illegal for a minor to purchase, view, possess, participate in or receive from sending to a registered contact point. The system would be funded by charging senders a fee for scrubbing their address lists. The bill provides for both criminal and civil penalties. The bill was modified in the House committee to replace the registry with a requirement that messages advertising such things as pornography, gambling and prostitution must contain ADV:ADLT in …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Domestic Relations Divorce: Require Certain Divorcing Parents To Participate In Certain Education Classes That Focus On The Effect Of Divorce And Separation On Children; Provide For Legislative Findings; Provide For The Types Of Persons Who Can Provide The Education; Provide For Exceptions To The Education Classes; Change Certain Provisions Relating To The Time Limit For Granting A Divorce On The Ground That The Marriage Is Irretrievably Broken; Provide For A Different Time Frame For Granting Divorce Based On Certain Circumstances; Provide For Related Matters; Provide For An Effective Date And Applicability; Repeal Conflicting Laws; And For Other Purposes, Karen Hamilton

Georgia State University Law Review

The bill would have required certain divorcing parents with dependent children under 18 years of age to participate in education classes and provided the different types of professionals who could conduct the classes. The bill also would have enacted a waiting period changing the time a court could grant a divorce to 120 days from the date of the parties' separation when the parties have children 18 years of age or younger. The bill provided a waiting period waiver when a party obtained a protective order or when either party submitted allegations to the court of specific facts establishing probable …

Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins

Faculty Scholarship

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …

Decline And Fall Of Legislative History - Patterns Of Supreme Court Reliance In The Burger And Rehnquist Eras, The, James J. Brudney, Corey Distlear

Faculty Scholarship

Reliance on legislative history in the Court's majority opinions has fallen from nearly 50 percent during the Burger era to less than 30 percent since 1985.

Nothing Concentrates The Mind Like The Prospect Of A Hanging: The Criminalization Of The Sarbanes-Oxley Act, Ann Marie Tracey, Paul Fiorelli

Northern Illinois University Law Review

This article discusses: (1) the post-Enron environment and the events that led up to the whirlwind passage of the Sarbanes-Oxley Act of 2002, (2) the legislative history for criminalizing a bill that originated in the House Financial Services Committee, and (3) a comparison between the increased criminal provisions and penalties under the Act with already existing legislation. It also analyzes how Congress closed loop-holes, flexed its muscles with respect to corporate practices, and the necessity of the new criminal laws.

Education Policies Prohibiting Bullying: Amend Policies Prohibiting Bullying Behavior; Make Changes Relating To Local School Board Policies Regarding Bullying In Student Codes Of Conduct; Change The Definition Of Bullying Behavior; Provide That Policies Relating To Bullying Behavior Apply To Students In Kindergarten Through Grade 12; Require Training On Bullying Behavior For Certain School System Personnel; Provide That Local School Systems Provide Information To The Department Of Education On The Number And Disposition Of Bullying Incidents Reported; Repeal Conflicting Laws, And For Other Purposes, Rachel E. Conrad

Georgia State University Law Review

Policies Prohibiting Bullying: Amend Policies prohibiting Bullying Behavior; Make Changes Relating to Local School Board Policies Regarding Bullying in Student Codes of Conduct; Change the Definition of Bullying Behavior; Provide that Policies Relating to Bullying Behavior Apply to Students in Kindergarten Through Grade 12; Require Training on Bullying Behavior for Certain School System Personnel; Provide that Local School Systems Provide Information to the Department of Education on the Number and Disposition of Bullying Incidents Reported; Repeal Conflicting Laws, and for Other Purposes