Law Commons^™

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year

This Article …

Return Of The Line Item Veto? Legalities, Practicalities, And Some Puzzles, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Public Reason As A Public Good, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …

If The Judicial Confirmation Process Is Broken, Can A Statute Fix It?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Judicial Activism And The Problem Of Induction, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

A comment on Suzanna Sherry’s "Why We Need More Judicial Activism."

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree, particularly as reflected …

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

Against Mix-And-Match Lawmaking, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Burying The “Continuing Body” Theory Of The Senate, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

In the U.S. Senate, only one-third of the members stand for election every two years; the rest carry over from one congressional term to the next. In this regard the Senate differs from the House of Representatives, where all members stand for election every two-year cycle. That much is familiar, but what legal consequences flow from this structural difference? According to some legislators, courts, and commentators, this difference is very important in that it makes the Senate, but not the House, a "continuing body." The continuing-body idea is invoked to defend highly controversial aspects of Senate practice. By far the …

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Aaron-Andrew P. Bruhl

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …