Law Commons^™

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …