Law Commons^™

Improving (And Avoiding) Interstate Interpretive Encounters, Aaron-Andrew P. Bruhl

Faculty Publications

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Unheralded And Transformative: The Test For Major Questions After West Virginia, Natasha Brunstein, Donald L. R. Goodson

William & Mary Environmental Law and Policy Review

Before the Supreme Court’s landmark decision in West Virginia v. EPA, the “major questions doctrine” was little more than a handful of cases that shared a few overlapping similarities. Although the Court explained in West Virginia that these “extraordinary” cases were all ones in which an agency had asserted “highly consequential power beyond what Congress could reasonably be understood to have granted,” the Court did not apply a consistent analysis across these earlier precedents. In other words, the doctrine lacked a framework to guide lower courts and litigants.

To our knowledge, no article written since West Virginia has explored …

Congressional Rules Of Interpretation, Jarrod Shobe

William & Mary Law Review

Many scholars argue that Congress should adopt federal rules of statutory interpretation to guide judicial interpretation. This Article uses a novel dataset to show that Congress has long used enacted rules of interpretation and has increasingly done so in recent decades. However, it has chosen to do so on a statute-by-statute basis in a way that has gone mostly unnoticed by scholars and judges. We developed a dataset by using computer code to search the U.S. Code dating back to 1946 for specific phrases indicating a rule of interpretation, then manually checked and classified each rule. These rules not only …

Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff

William & Mary Business Law Review

Many, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of …