Law Commons^™

Vol. 5 No. 1, Fall 2013; Debtors Deserve The Dischargeability Of Tax Liability To Be "Honest And Reasonable", Robert Finegan

Northern Illinois Law Review Supplement

The most current version of the Bankruptcy Code, the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), is considered one of the most technical and comprehensive reforms to the Bankruptcy Code. Facing a dramatic increase in consumer bankruptcies and fearing an increase in abuse of the system, Congress included stricter guidelines and rules to try and prevent debtor abuse in BAPCPA. Another addition that BAPCPA added, and at the heart of this Comment, was the addition of a hanging paragraph to the Bankruptcy Code section 523(a). The issue of whether a person can discharge their tax liability through a Chapter …

Proportionality And Federalization, Stephen F. Smith

Stephen F. Smith

No abstract provided.

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Jeffrey A. Pojanowski

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Holdings, Dicta, And The Paradigms Of Precedent, Randy J. Kozel

Randy J Kozel

In United States v. Windsor, the Supreme Court invalidated a key provision of the federal Defense of Marriage Act. In doing so, it raised significant questions about the power of states to limit the institution of marriage to opposite-sex couples. That issue was not presented in Windsor itself, but Windsor’s reasoning and rhetoric have already begun to play a pivotal role in ensuing challenges to state laws. Determining the future effects of Windsor, or of any other Supreme Court decision, requires defining the scope of judicial precedent. One account of precedent is restrictive: Only a court’s holdings must …

Direct Democracy And Hastily Enacted Statutes, John C. Nagle

John Copeland Nagle

No abstract provided.

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

Anthony J. Bellia

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 …

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds

William L. Reynolds

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Jill M. Fraley

None available.

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary …

Valuation Misstatement Penalties Require Valuation Misstatements, David J. Shakow

All Faculty Scholarship

In this report, I argue that the valuation misstatement penalty has been misinterpreted by the IRS to apply to tax shelter transactions that have nothing to do with valuation. The penalty applies to taxpayers who claim deductions from inflated basis only when the basis was inflated as a result of an overvaluation. Properly understood, the penalty provision rarely raises the issue for which the government successfully sought certiorari in United States v. Woods.

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is …

Canons To Create Ties And Canons To Break Them, Steve R. Johnson

Scholarly Publications

The human spirit can be deeply stirred by art for its own sake, but there is special magic when the esthetic combines with the practical. It was in this sense that Charles W. Eliot, for decades president of Harvard University, once declared that he found great beauty in the shape of the handle of an American ax. In the same fashion, beauty resides in well-made statutory interpretation arguments.

Over the millennia, scores of principles of construction have evolved, all of them useful in the right contexts. Usually, more than one principle can plausibly be maintained to apply to the given …

Vol. 4 No. 2, Spring 2013; The Error In Finding That Undocumented Persons Are Not “The People”: A Deeper Look At The Implications Of United States V. Portillo-Munoz, Dorota Gibala

Northern Illinois Law Review Supplement

In 2011, the Fifth Circuit held in United States v. Portillo-Munoz that undocumented persons are not entitled to the protections of the Second Amendment to the Constitution. Although part of the court’s reasoning was based on 18 U.S.C. § 922(g)(5), its decision also turned on the belief that the meaning of the phrase “the people” in the Second Amendment did not incorporate undocumented persons. This Note argues that Portillo-Munoz’s interpretation of “the people,” as implying that “the people” exclusively encompasses only citizens, is erroneous with how the phrase “the people” is similarly situated in the Fourth Amendment. As set out …

Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Criminal Constitutional Avoidance, William W. Berry Iii

William W Berry III

Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.

This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have …

Statutory Proximate Cause, Sandra F. Sperino

Faculty Articles and Other Publications

Federal statutes often use general causal language to describe how an actor’s conduct must be connected to harm for liability to attach. For example, a statute might state that harm must be “because of” certain conduct. Federal courts have recently relied on this general causal language and other arguments to apply the common law idea of proximate cause to several federal statutes.

While legal scholarship has explored the relationship between statutes and the common law generally, it has not considered whether particular common law doctrines are especially problematic in the statutory context. This Article argues that using proximate cause in …

Retaliatory Disclosure: When Identifying The Complainant Is An Adverse Action, Jamie Darin Prenkert, Julie Manning Magid, Allison Fetter-Harrott

Jamie D Prenkert

Sometimes the possibility of being publicly identified as a complainant will be enough to discourage a person from complaining. That is especially true when being identified as a complainant exposes her to a greater likelihood of reprisal. This paper addresses the circumstances when such publicity can be deemed materially adverse, such that it ought to be sufficient to support a claim of retaliation. We focus on the particular context of claims of employment discrimination, especially pursuant to Title VII of the 1964 Civil Rights Act. When an employee or applicant for employment files a charge of discrimination with the Equal …

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Faculty Scholarship

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds

Faculty Scholarship

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state …

Jurisdictional Standards (And Rules), Adam I. Muchmore

Journal Articles

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …

Finally, An Answer On Copyright, First Sale, And The Gray Market, James Gibson

Law Faculty Publications

In two past entries in this series, here and here, I discussed whether copyrighted goods manufactured abroad may be resold in the United States without having to get a new license from the copyright owner. When the goods are pirated – manufactured illegally – the answer is clearly no; that’s a classic black-market sale. But when the goods were manufactured abroad with the copyright owner’s consent, well, that’s different. In that case, the resale is what we call a gray-market sale. And there, the answer is less clear.

Or at least it was. But at long last, and after one …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Scholarly Articles

None available.

Wagging, Not Barking: Statutory Definitions, Jeanne Price

Scholarly Works

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader's understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Civil Procedure—Property Improvement Claims—A History And Recommendation For Arkansas's Lone True Statute Of Repose, Luke K. Burton

University of Arkansas at Little Rock Law Review

Determining the proper defendant for construction defects is largely dependent on the timing of the defect. Particularly, the sooner the defect develops after completion, the more likely that someone involved in the construction process is responsible. However, as time passes from the completion of construction to the development of a problem, it is more likely that the problems are the result of ordinary wear and tear rather than defective design or construction. Ark. Code Ann. § 16-56-112 (Statute) was enacted to manage these issues of timing and responsibility for construction defects by providing that homeowners may not bring suit against …

Antitrust And The Judicial Virtues, Daniel A. Crane

Articles

Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism, …

Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited."S It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone--or a foreign government alone--can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase …

Congressional Silence And The Statutory Interpretation Game, Paul Stancil

Faculty Scholarship

This Article explores the circumstances under which the federal legislative apparatus may be unable to respond to a politically objectionable statutory interpretation from the Supreme Court. The Article builds upon existing economic models of statutory interpretation, for the first time incorporating transaction costs into the analysis. The Article concludes by identifying recent real-world disputes in which transaction costs constrained Congress and the President from overriding the Court.