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Full-Text Articles in Law
King V. Burwell And The Triumph Of Selective Contextualism, Jonathan H. Adler, Michael F. Cannon
King V. Burwell And The Triumph Of Selective Contextualism, Jonathan H. Adler, Michael F. Cannon
Faculty Publications
King v. Burwell presented the question of whether the Patient Protection and Affordable Care Act of 2010 (ACA) authorizes the Internal Revenue Service (IRS) to issue tax credits for the purchase of health insurance through Exchanges established by the federal government. The King plaintiffs alleged an IRS rule purporting to authorize tax credits in federal Exchanges was unlawful because the text of the ACA expressly authorizes tax credits only in Exchanges “established by the State.” The Supreme Court conceded the plain meaning of the operative text, and that Congress defined “State” to exclude the federal government. The Court nevertheless disagreed …
Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky
Efficient Contextualism, Peter M. Gerhart, Juliet P. Kostritsky
Faculty Publications
This Article recommends an economic methodology of contract interpretation that enables the court to maximize the benefits of exchange for the parties and thereby enhance the institution of contracting. We recommend a methodology that asks the parties to identify the determinants of a surplus maximizing interpretation so that the court can determine whether the determinants raise issues that need to be tried. We thus avoid the false choice between textualist and contextualist methodologies, while allowing the parties and the court to avoid costly litigation. For textualist courts, our methodology helps the judge determine when the terms the parties used are …