Law Commons^™

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

Scholarly Works

In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

Priorities In Accounts: The Crazy Quilt Of Current Law And A Proposal For Reform, Dan T. Coenen

Vanderbilt Law Review

Moe Promisee has a right under a contract to receive monetary payments from Mae Promisor. Moe assigns his right first to Faye and then to Clay. Whom must Mae pay, Faye or Clay?

For more than a century, judges have struggled with successive assignments to different persons of the same contract right. These cases, which typically involve rights to monetary payments called "accounts," have generated subtleties of doctrine and disagreements among courts. Today, as a general rule, the Uniform Commercial Code controls these cases.' Ambiguities, however, lurk in the Code. Cryptic common-law doctrines also continue to govern many successive-assignment problems. …

Consideration And Estoppel: Problem And Panacea, Bruce Macdougall

Dalhousie Law Journal

In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …

Subject: Object, Jeanne L. Schroeder

University of Miami Law Review

No abstract provided.

The Formal Character Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Argument For Judicial Review—And For The Originalist Approach To Judicial Review (The Ben J. Altheimer Lecture), Michael J. Perry

University of Arkansas at Little Rock Law Review

No abstract provided.

The Democratic Intellect: The State In The Work Of Madame Justice Wilson, Philip L. Bryden

Dalhousie Law Journal

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that …

The Constituents Of Democracy: The Individual In The Work Of Madame Justice Wilson, Danielle Pinard

Dalhousie Law Journal

I shall attempt to share with you the impression I have of Judge Wilson's conception of the individual. I will try to present a general view of what occurred to me as I went through the opinions she wrote while at the Supreme Court of Canada, alone or with the assent of her colleagues, dissenting or in agreement with the majority.' I shall try to put together, as honestly as possible, what she explicitly said on the subject in question.

The "Family" In The Work Of Madame Justice Wilson, Mary Jane Mossman

Dalhousie Law Journal

Susan Moller Okin's assertion about the need for justice in families offers a challenging starting point for an assessment of the family in the work of Justice Wilson. Her assertion challenges us for a number of reasons. First, in claiming that justice in the family is a prerequisite to a just society, Okin compels us to focus careful attention on our family relationships if we aspire to a just resolution of our public and political debates. For her, a satisfactory theory of justice can be developed only if it takes account of the structures and power in family relationships, and …

Courts And Cultural Distinctiveness, Marie R. Deveney

University of Michigan Journal of Law Reform

The claim that minority ethnic and religious groups are culturally distinct from the dominant society is often, either implicitly or explicitly, a key element of demands these groups make to courts and legislatures for accommodation of their needs. In such cases, the decision maker's understanding of what constitutes "cultural distinctiveness" is crucial, for it can strongly influence the outcome of the accommodation question. In this brief Essay related to Peter Welsh's and Joseph Carens's papers and Dean Suagee's remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists' subtle and sophisticated understandings of cultural distinctiveness with the …

Federal Judgments Law: Sources Of Authority And Sources Of Rules, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Michigan Law Review

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

Justice Barkett's Feminist Jurisprudence, Lanae Holbrook

University of Miami Law Review

No abstract provided.

The Jurisprudential Cab Ride: A Socratic Dialogue, Daniel A. Farber

BYU Law Review

No abstract provided.

Feminist Jurisprudence In A Conventional Context: Is There Room For Feminism In Dworkin's Theory Of Interpretive Concepts?, Lynne Hanson

Osgoode Hall Law Journal

This paper examines Dworkin's interpretive theory of law from a feminist perspective, and asks whether his attempts to accommodate competing political opinions within an interpretive community can successfully encompass feminist concerns as well. It is argued that Dworkin repeatedly underestimates the extent of disagreement regarding the practice of law as a whole, while his requirements of fit, coherence and integrity impose a political agenda on the interpreter. As a consequence, Dworkin's theory is ultimately unable to adequately respond to a feminist critique of law, so that feminist jurisprudence must be seen as falling outside the scope of his interpretive community.

Fiduciary Obligation Under Intellectual Siege: Contemporary Challenges To The Duty To Be Loyal, Deborah A. Demott

Osgoode Hall Law Journal

This essay argues that fiduciary obligation is a distinctive type of obligation. Its central rationale, nurturing and enforcing commitments to act loyally toward the interests of others, furnishes limits on the reach of fiduciary obligations. Attempts to characterize fiduciary obligation as solely a type of contractual obligation or as a concept best rationalized by the law of torts are unpersuasive, as are attempts to capture fiduciary obligation within definitions of altruistic behaviour. The author elaborates these arguments using examples drawn from partnership and corporate law.

Crime And Punishment In Eighteenth-Century England, William B. Jones Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

Judicial Federalism: Current Trends And Long-Term Prospects, Stanley H. Friedelbaum

Florida State University Law Review

No abstract provided.

The Canons Of Statutory Construction And Judicial Constraints: A Response To Macey And Miller, Lawrence C. Marshall

Vanderbilt Law Review

Professors Jonathan Macey and Geoffrey Miller claim to have set out to provide a positivist explanation for why judges ever invoke canons in the course of interpreting statutes.' In truth, though, their question is a far broader one. What they really seek to explain is why judges ever use any interpretive tools in the course of interpreting statutes. Why, Macey and Miller want to know, don't judges simply decide what result in the case will best promote a good outcome on the grounds of public policy, intrinsic fairness, economic efficiency or wealth maximization? This question is perplexing to Macey and …

Crime And Punishment In Eighteenth-Century England, William B. Jones Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

An Integrated Jurisprudence And Its Influence In Fighting Poverty, Kevin L. O'Shea

University of the District of Columbia Law Review

No abstract provided.

Incommensurability As A Jurisprudential Puzzle, Richard Warner

All Faculty Scholarship

No abstract provided.

The Jurisprudence Of Genetics, Rochelle C. Dreyfuss, Dorothy Nelkin

Vanderbilt Law Review

In recent years, genetic research has ascended the list of national research priorities. From among the many weighty claims on the fisc, Congress has chosen to provide significant federal support for the Human Genome Initiative, a project aimed at mapping the complete set of genetic instructions that form the structure of inherited attributes. Geneticists anticipate that the project will disclose important new in- formation on human development and disease. Some go further. One influential scientist remarked that this work is "the ultimate answer to the commandment 'Know thyself.' ""

The decision to fund this Initiative, the largest biology project in …

Remarks On The Process Of Judging, William H. Rehnquist

Washington and Lee Law Review

No abstract provided.

Improving One's Situation: Some Pragmatic Reflections On The Art Of Judging, Catharine Pierce Wells

Washington and Lee Law Review

No abstract provided.

Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz

Michigan Law Review

In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making of …

Balancing Commerce, History, And Geography: Defining The Navigable Waters Of The United States, John F. Baughman

Michigan Law Review

This Note develops a simple set of principles useful for defining navigable waters in a contemporary context. Part I considers why federal admiralty jurisdiction exists, and traces the evolution of the phrase navigable waters as a term of art. Part II analyzes the conflicting contemporary definitions of navigable waters. Part III resolves the conflict by proposing guidelines that address the major concerns of all competing definitions. The system advocated is consistent with the goals of admiralty, constitutionally sound, easy to apply, and focuses attention on the nexus test to resolve the issue of whether particular cases "belong" in admiralty.

Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi

Michigan Law Review

This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test on its jurisprudence …

Rorty, Radicalism, Romanticism: The Politics Of The Gaze, Joan C. Williams

Faculty Scholarship

No abstract provided.