Law Commons^™

Supreme Court Litigators In The Age Of Textualism, Aaron-Andrew P. Bruhl

Faculty Publications

The Supreme Court’s approach to statutory interpretation has moved in a textualist direction over the last several decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8,000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.

This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift …

The Supreme Court Review Act: Fast-Tracking The Interbranch Dialogue And Destabilizing The Filibuster, Aaron-Andrew P. Bruhl

Faculty Publications

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

The Causation Canon, Sandra F. Sperino

Faculty Publications

It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon-the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish "but-for" cause.

This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.

The …

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 …

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

Opting Out Of Shareholder Primacy: Is The Public Benefit Corporation Trivial?, David Yosifon

Faculty Publications

The central command of corporate governance law is that directors must serve the shareholder interest. Directors may not sacrifice shareholder value in favor of other corporate stakeholders or other interests. In this Article, I examine whether this rule of shareholder primacy is mandatory, or merely a default rule which can be altered through private ordering. I argue that Delaware’s corporate law, the most important corporate law in the United States, should be understood to have long-permitted privately-ordered deviation from shareholder primacy. This assessment, however, is at least complicated by the recent legislative creation of the Public Benefit Corporation (PBC). The …

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

Bond V. United States: Choosing The Lesser Of Two Evils, David L. Sloss

Faculty Publications

In Bond v. United States, Carol Anne Bond used toxic chemicals in an attempt to poison her husband’s lover. The federal government prosecuted Bond for violating the Chemical Weapons Convention Implementation Act of 1998 (the “CWC Act”). Congress enacted the CWC Act to implement U.S. obligations under the Chemical Weapons Convention (CWC), a multilateral treaty signed in 1993 that is designed to address the global threat posed by chemical weapons. Bond challenged the constitutional validity of the federal statute and urged the Court to overrule Missouri v Holland, a 1920 case holding that the combination of the Treaty Power and …

The Canon At The Water's Edge, Thomas B. Bennett

Faculty Publications

What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress's most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes …

Interpretive Divergence All The Way Down: A Response To Aaron-Andrew P. Bruhl And Ethan J. Leib, Elected Judges And Statutory Interpretation, 79 U Chi L Rev 1215 (2012), Anita S. Krishnakumar

Faculty Publications

This article is a response to the law review article cited in its title. It focuses on a corollary question raised by the article's analysis: if one takes seriously the proposition that it may make sense for elected judges to interpret statutes differently than do appointed judges, should judicial opinions written by elected judges look substantially different from those written by appointed judges? Part I examines the relative roles of judicial opinions written by elected versus appointed judges in a world in which divergence is practiced. Part II explores specific ways in which we might want or expect an elected …

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell

Faculty Publications

Part I of this article details the Bureau of Prisons' rules and policies governing inmate placement, including the most recent iteration. Part II examines Chevron27 and the Bureau of Prisons' extraordinary justification exception rule. Part III turns to the threshold matter of obtaining judicial access to challenge the Bureau of Prisons' new rule, with Part III.A arguing that the federal courts should relax their standards when faced with exceptions to the exhaustion requirement and Part III.B arguing for the adoption of a federal public importance exception to the mootness doctrine. The article concludes that these changes will further Congress' dual …

Passive-Voice References In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

The Supreme Court regularly references grammar rules when interpreting statutory language. And yet grammar references play a peculiar role in the Court's statutory cases—often lurking in the background and performing corroborative work to support a construction arrived at primarily through other interpretive tools. The inevitable legisprudential question triggered by such references is, why does the Court bother? If grammar rules provide merely a second, third, or fourth justification for an interpretation reached through other interpretive canons, then what does the Court gain—or think it gains—by including such rules in its statutory analysis?

This essay examines these questions through the lens …

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Law, Ideology, And Strategy In Judicial Decisonmaking: Evidence From Securities Fraud Actions, Michael A. Perino

Faculty Publications

Legal academics and political scientists continue to debate whether the legal, attitudinal, or strategic model best explains judicial decision making. One limitation in this debate is the high-court bias found in most studies. This article, by contrast, examines federal district court decisions, specifically interpretations of the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated distinct liberal and conservative positions. The data compiled here support the hypothesis that the later emergence of an intermediate interpretation was the result of strategic statutory interpretation rather than simply judges acting consistently with their ideological preferences, although there is some …

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of …

Statutory Interpretation In Securities Jurisprudence: A Failure Of Textualism, Ediberto Román

Faculty Publications

This Article critiques the development of textualist theory in securities jurisprudence and analyzes the Central Bank decision as an example of the defects inherent in the application of a textualist approach. It demonstrates how the development of textualist securities jurisprudence stemmed from decisions that casually rejected precedent and mischaracterized existing law, thereby resulting in a distortion of the legislature’s intent. An analysis of the Securities Exchange Act demonstrates how the Central Bank Court’s approach towards statutory interpretation led to its failure to analyze other relevant Exchange Act provisions, including the most relevant provision – Section 20(a). The first section of …

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …