Law Commons^™

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

In Defense Of Moses, Tamar Meshel

St. John's Law Review

(Excerpt)

In 1925, Congress enacted a short statute to make arbitration agreements in maritime transactions and interstate commerce “valid, irrevocable, and enforceable.” Yet the Federal Arbitration Act’s (FAA) simple objective of facilitating the resolution of disputes outside of the courtroom has proven much easier to declare than to implement in practice. In the century since its enactment, the FAA has become a frequently litigated statute and the subject of 59 opinions of the Supreme Court, the majority of which have reversed lower courts’ interpretations of the Act. The Supreme Court’s FAA jurisprudence has not only been abundant but also controversial. …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Notre Dame Law Review

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Introduction To The Bremer-Kovacs Collection: Historic Documents Related To The Administrative Procedure Act Of 1946 (Heinonline 2021), Emily S. Bremer, Kathryn E. Kovacs

Journal Articles

Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, and it includes numerous failed bills, a presidential veto, and a full panoply of congressional documents. In addition, much of the most crucial documentation underlying the APA was produced outside of Congress—by the executive branch—and even outside of government—by the American Bar Association. Identifying and locating all the relevant documents is difficult. Understanding each piece …

The Benefits Of Integrating Statutory Construction And Analysis In A First-Year Legal Writing Course, Lauren E. Sancken, Mireille Butler

Articles

Teaching statutory analysis to first-year law school students not only reinforces important principles of legal analysis and writing (from gaining a better understanding of the hierarchy of legal authorities to continuing to practice IRAC/CRAC methods of organization), but it also prepares students better for the actual practice of law.

Uncovering The Legislative Histories Of The Early Mail Fraud Statutes: The Origin Of Federal Auxiliary Crimes Jurisdiction, Norman Abrams

Utah Law Review

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime, that is, a crime that does not protect direct federal interests against harm. Rather, it functions as an auxiliary to state crime enforcement. In the almost 150 years since Congress enacted the mail fraud statute, federal auxiliary crimes have proliferated and have become the most important part of federal criminal jurisdiction—so that, today, they largely duplicate state crimes. It is important to know how this form of federal criminal jurisdiction originated.

Mail fraud is a crime that scholars, judges, and lawyers have viewed as …

Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley

University of Michigan Journal of Law Reform

Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …

Are Digital Services Taxes Imposed By Other Countries Creditable Under Irc Section 903? Yes. But, What If The Opposite Is True?, Charles Edward Andrew Lincoln Iv

Touro Law Review

No abstract provided.

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …

The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg

Cornell Law Review

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia's position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing ofjudicial nomination played in circuit judges' use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative history …

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

Scholarly Works

So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many …

Symposium On Pofma: Parliamentary Debates About Pofma – Hansard Beyond Statutory Interpretation?, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The issue of a legislative response to falsehoods first drew public attention when the Select Committee on Deliberate Online Falsehoods held its public hearings. This public attention was renewed when the Protection from Online Falsehoods and Manipulation Act (“POFMA”), in Bill form, was unveiled. Questions arose among both the public and MPs about whether POFMA would grant the Government power to stifle academic research, journalism, or the expression of opinion, as well as whether it would be difficult for an individual to seek recourse against an allegedly wrongly made Direction.This post focuses not with the substance of these issues (important …

Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus

Pepperdine Law Review

There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even as academic and …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

To Promote Innovation, Congress Should Abolish The Supreme Court Created Exceptions To 35 U.S. Code Sec. 101, Shahrokh Falati

Articles & Chapters

No abstract provided.

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …

How Safe Is Too Safe? Exemption 7(F) And The Withholding Of Critical Documents, Grant Snyder

Michigan Journal of Environmental & Administrative Law

The Freedom of Information Act (FOIA) is one of the main tools used by the American public to investigate the actions of its government. Congress created FOIA in an attempt to make most government documents available to the public. Today, the FOIA process favors government withholding. This bias comes from institutional issues in courts’ review of FOIA challenges.

In the environmental and administrative law context, federal agencies use many exemptions to withhold government records from citizen and non-profit groups. Agencies that are tasked with permitting and regulating energy pipelines and other environmentally-sensitive infrastructure now regularly cite Exemption 7(F). These agencies …

Of Gangs And Gaggles: Can A Corporation Be Part Of An Association-In-Fact Rico Enterprise? Linguistic, Historical, And Rhetorical Perspectives, Randy D. Gordon

Randy D. Gordon

Over 30 years ago, courts of appeals began to hold that the RICO statute’s definition of association-in-fact enterprise is broad enough to include corporations as constituent members, even though that definition states that such an association is limited to a “group of individuals.” This Article demonstrates why these cases were wrongly decided from a variety of perspectives: linguistic, systemic and consequentialist. It also suggests a strategy for correcting this widespread interpretive error and provides evidence that the Supreme Court may be disposed to agree that the lower courts have uniformly erred.

The Communications Decency Act: Immunity For Internet-Facilitated Commercial Sexual Exploitation, Haley C. Halverson

Dignity: A Journal of Analysis of Exploitation and Violence

This paper reviews the original intent and historical application of the Communications Decency Act (CDA), most notably Section 230, with special regard to cases of Internet-facilitated commercial sexual exploitation. Although the CDA was originally created to protect children online, Section 230 of the CDA has been interpreted by the courts to grant broad immunities to websites facilitating the sexual exploitation of children and adults alike. Through analyzing the genesis and evolution of the CDA, it becomes clear that court interpretations of Section 230 are starkly inconsistent with original Congressional intent, and that the primary way to avoid de facto decriminalization …

Why And How The Issue Of Copyright Registration Made Its Way Up To The Supreme Court, Justin Scharff

Touro Law Review

No abstract provided.

Tracking Colorado Legislation, Robert Linz

Publications

No abstract provided.

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

The Defend Trade Secrets Act Whistleblower Immunity Provision: A Legislative History, Peter Menell

The Business, Entrepreneurship & Tax Law Review

The Defend Trade Secrets Act of 2016 ("DTSA") was the product of a multi-year effort to federalize trade secret protection. In the final stages of drafting the DTSA, Senators Grassley and Leahy introduced an important new element: immunity "for whistleblowers who share confidential information in the course of reporting suspected illegal activity to law enforecement or when filing a lawsuit, provided they do so under seal." The meaning and scope of this provision are of vital importance to enforcing health, safety, civil rights, financial market, consumer, and environmental protections and deterring fraud against the government, shareholders, and the public. This …

Signing Statements And Presidentializing Legislative History, John M. De Figueiredo, Edward H. Stiglitz

Cornell Law Faculty Publications

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decisionmaking since the 1980s—as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive empirical examination of …

Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This legal Memorandum on the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and written by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The Memorandum is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

4 p.

"The legislative history primarily identifies two issues that SB08-200 was designed to resolve: (1) the need for dignity and access to justice for LGBT people and …

Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

449 p.

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

Statutory Law, Kathleen Klepfer, Alexis Fetzer

Law Faculty Publications

This chapter describes the sources of law created by the legislative branch of the Commonwealth of Virginia. The materials include the laws enacted by the Virginia General Assembly, the publications in which those laws are found, and the resources available to assist in interpreting the legislative enactments.

The cardinal rule in Virginia statutory construction is that the statute expresses the intention of the lawmakers. Therefore, it falls upon the courts to ascertain the General Assembly’s intent where that intent becomes important in the application of statutory materials. When researching Virginia statutes, certain principles of interpretation and application must be kept …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Faculty Scholarship

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …