Law Commons^™

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the …

Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy

Law Faculty Scholarly Articles

A typical Administrative Law course presents the Supreme Court's decision in United States v. Florida East Coast Railway Co. as establishing the rule that statutory text quite close to the magic words, "on the record after opportunity for an agency hearing," is needed to trigger the Administrative Procedure Act's (APA) formal hearing requirements for a rulemaking. Florida East Coast Railway is a prime example of an underrated case because, even though the case is well known, its renown is a consequence only of its black letter rule about rulemaking procedures. Many scholars and practitioners do not appreciate the case for …

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme …

Drugged, Carl E. Schneider

Articles

The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

Publications

No abstract provided.

Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford

Journal Articles

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to …

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 …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Journal Articles

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …

Estoppel And Textualism, Gregory E. Maggs

GW Law Faculty Publications & Other Works

How might judges who purport to adhere to textualism justify their use of estoppel to affect the application of statutes that say nothing about estoppel? This essay addresses this question. It considers six possible arguments that courts have made or might make to rationalize the recognition of unwritten exceptions to statutes in the name of estoppel. These arguments include the following: (1) Even though the statutory provision at issue says nothing about estoppel, some other legislation expressly authorizes courts to invoke equitable principles, including estoppel; (2) The legislation contains an implied term authorizing the application of estoppel principles; (3) Courts …

The Totality Of The Circumstances Of The Debtor's Financial Situation In A Post-Means Test World: Trying To Bridge The Wedoff/Culhane & White Divide, John A. E. Pottow

Articles

Bankruptcy Judge Eugene Wedoff and Creighton Law School professors Marianne Culhane and Michaela White engage in a spirited debate over a series of law review articles about the proper scope of motions to dismiss a debtor's petition under section 707(b) of the freshly revised Bankruptcy Code. It is an interesting and provocative dialogue, with both sides advancing their respective positions persuasively. As a result, I find myself in the unfortunate position of wanting to agree with both. Since that is impossible, however, this brief article is my attempt to find a middle ground between their two positions. It does so …

Only A Sith Thinks Like That: Llewellyn's "Dueling Canons," One To Seven, Michael B.W. Sinclair

Articles & Chapters

No abstract provided.