Law Commons^™

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …

The Implied Assertion Doctrine Applied To Legislative History, Noah Marks, Jessica Ranucci

Faculty Scholarship

This Article derives a new approach towards the use of legislative history to interpret statutes by adapting and applying the law of evidence. Courts use legislative history as hearsay evidence: out-of-court statements used for the truth of the matter asserted. Evidence law includes many exceptions under which hearsay becomes admissible. One such exception, the implied assertion exception, can be applied to courts' use of legislative history. Under this framework, legislative history can illuminate the interpretive enterprise, while many of the problems identified by opponents of legislative history are mitigated. After presenting the development of the implied assertion doctrine in evidence …

Originalism Without Text, Stephen E. Sachs

Faculty Scholarship

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

Forgetting Functionality, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this comment (as part of the symposium From Shovels to Jerseys: A Guide to Apply Star Athletica v. Varsity Brands), we address just one of the opinion’s shortcomings: its failure to adequately define and distinguish between a design’s functional and expressive features. Not only does the Court’s neglect produce uncertainty for creators, litigants, and judges, the opinion makes it substantially easier …