Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- United States Supreme Court (10)
- Federal courts (5)
- Statutory interpretation (5)
- Law reform (3)
- Legislative intent (3)
-
- Authority (2)
- Circuit splits (2)
- Congress (2)
- Judicial review (2)
- Precedent (2)
- Preemption (2)
- Procedural law (2)
- Supreme Court of the United States (2)
- Textualism (2)
- Act of 1790 (1)
- Agency interpretations (1)
- Alien Tort Statute (1)
- Ambiguity (1)
- Antitrust (1)
- Appellate models (1)
- Apprendi v. New Jersey (1)
- Arbitration (1)
- Armed Career Criminal Act (1)
- Artists (1)
- Attorney's fees (1)
- Book reviews (1)
- Bribery (1)
- Burdick v. Takushi (1)
- Byrd v. Blue Ridge Rural Elec. Co-op. (1)
- Canons of construction (1)
- Publication Year
Articles 1 - 23 of 23
Full-Text Articles in Jurisprudence
The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart
The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart
Michigan Law Review
New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their …
Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson
Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson
Michigan Law Review
In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …
State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester
State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester
Michigan Law Review
The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …
Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban
Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban
Michigan Journal of Environmental & Administrative Law
“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and …
Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey
Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey
Michigan Journal of Environmental & Administrative Law
There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.
The Supreme Court, when it rendered its decision, seemed to be rectifying a …
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Michigan Law Review
Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …
Statutory Interdependence In Severability Analysis, Rachel J. Ezzell
Statutory Interdependence In Severability Analysis, Rachel J. Ezzell
Michigan Law Review
According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craft such subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and …
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock
Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock
Michigan Law Review
In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Bichel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents …
Structure And Precedent, Jeffrey C. Dobbins
Structure And Precedent, Jeffrey C. Dobbins
Michigan Law Review
The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …
Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein
Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein
University of Michigan Journal of Law Reform
One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."
This Article makes …
Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum
Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum
Michigan Journal of Race and Law
Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …
God Vs. The Gavel: A Brief Rejoinder, Douglas Laycock
God Vs. The Gavel: A Brief Rejoinder, Douglas Laycock
Michigan Law Review
I recently reviewed God vs. the Gavel by Professor Marci Hamilton, and she published a brief response. My review briefly summarized the book and then made three principal points, addressing Hamilton's institutional competence thesis, her "no-harm" principle, and the remarkable number of legal and factual errors in the book. In this reply, I will review each of these points in turn.
Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe
Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe
Michigan Journal of International Law
This Article challenges the universalist theory of international law upon which federal incorporation of CIL and international human rights litigation rely. It unpacks the international relations (IR) theory paradigms that support the universalist theory, and discusses a competing theory that views state compliance with international law as a function of national self-interest. Working from this perspective, it proposes a framework to evaluate the wisdom of federal incorporation of CIL and the wisdom of international human rights litigation. The framework suggests that federal incorporation of CIL generates sovereignty costs for the United States, and that international human rights litigation complicates the …
Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell
Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell
Michigan Journal of Gender & Law
This Article analyzes how newspapers described and characterized the civil rights provision over the past decade and shaped the public discourse about the law. The author examines how lower federal courts, and eventually the Supreme Court, categorized the VAWA remedy when deciding whether Congress had acted within its commerce powers. After considering why there may have been resistance in the press and in the courts to VAWA's categorization of violence against women as a civil rights issue, the author concludes by examining the remedies that have been introduced at the state and local level for victims of gender-motivated violence, and …
The Emerging Role Of The Quid Pro Quo Requirement In Public Corruption .Prosecutions Under The Hobbs Act, Peter D. Hardy
The Emerging Role Of The Quid Pro Quo Requirement In Public Corruption .Prosecutions Under The Hobbs Act, Peter D. Hardy
University of Michigan Journal of Law Reform
This Note discusses the quid pro quo requirement under the Hobbs Act, a federal criminal statute which applies to bribery by public officials. The author first describes two recent decisions by the Supreme Court, McCormick v. United States and Evans v. United States, which established slightly different versions of a quid pro quo requirement in public corruption prosecutions under the Hobbs Act. The author then explains that the lower federal courts interpreting McCormick and Evans have molded the quid pro quo requirement so that a prosecutor must prove in all public corruption cases under the Hobbs Act that the …
Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi
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 …
The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review
The Rico Nexus Requirement: A "Flexible" Linkage, Michigan Law Review
Michigan Law Review
This Note argues that the RICO "nexus" requirement can be interpreted to limit effectively this overbroad use of RICO without emasculating the statute. The "nexus requirement" is generally described as defining the word "through" in section 1962(c), the provision of RICO that makes it illegal to "conduct or participate, directly or indirectly, in the conduct of [an] enterprise's affairs through a pattern of racketeering activity." This language establishes the necessity of proving a relationship between the enterprise and the racketeering. Once evidence of the alleged enterprise and the predicate racketeering acts has been submitted, the final element of proof must …
Congressional Repair Of The Erie Derailment, Leonard V. Quigley
Congressional Repair Of The Erie Derailment, Leonard V. Quigley
Michigan Law Review
It is the thesis of this article that such legislative review and repair is required today on the part of the federal legislature in regard to the diversity jurisdiction of the federal courts. Such reconsideration is particularly appropriate where, as in the analogous commerce clause area, the subject matter has been committed specifically to the Congress by the Constitution.
Legislation On The American Frontier: Adoption Of Laws By Governor And Judges-Northwest Territory 1788-1798: Indiana Territory 1800-1804; Michigan Territory 1805-1823, William Wirt Blume
Legislation On The American Frontier: Adoption Of Laws By Governor And Judges-Northwest Territory 1788-1798: Indiana Territory 1800-1804; Michigan Territory 1805-1823, William Wirt Blume
Michigan Law Review
The Northwest Ordinance of 1787 made provisions for legislation by the territorial government in two stages: (1) adoption of laws by the governor and judges from the laws of the original states, and (2) enactment of statutes by a legislature made up of the governor, a council, and elected representatives. The first method was to be followed until the population should reach 5,000 and the second method thereafter. The present study is limited to the first stage.
Full Faith And Credit To Judgments And Public Acts, Kurt H. Nadelmann
Full Faith And Credit To Judgments And Public Acts, Kurt H. Nadelmann
Michigan Law Review
Interest here is concentrated on full faith and credit for public acts. But what led to insertion of the command respecting public acts cannot be divorced historically from the study of the command of full faith for judgments. The whole field, therefore, has been included in the reexamination. Clarifications obtainable on the "judgments" side, it will be seen, help also on the "public acts" side. On both sides there are historical facts which deserve greater attention than has been hitherto given, and if, as a result, some of the myths surrounding the' Lawyers Clause are exploded, the rethinking may have …
Rules Of Practice And Procedure: A Study Of Judicial Rule Making, Charles W. Joiner, Oscar J. Miller
Rules Of Practice And Procedure: A Study Of Judicial Rule Making, Charles W. Joiner, Oscar J. Miller
Michigan Law Review
The rule-making power of the courts in the United States is is brought into focus wherever procedural reform is undertaken. As more and more states have undertaken rev1s1on of judicial procedures, the power and authority of courts to promulgate rules of practice and the definition of the scope of such rules have claimed increasingly the attention of legal writers. This trend can be attributed in part to a growing realization that statutes governing practice and procedure in courts, enacted by legislatures meeting every year or two, have failed to achieve that minimum standard in the administration of justice necessary to …
Note And Comment, Harry B. Hutchins, Frank B. Fox, Frank P. Helsell, Burns A. Henry, Clyde Dewitt
Note And Comment, Harry B. Hutchins, Frank B. Fox, Frank P. Helsell, Burns A. Henry, Clyde Dewitt
Michigan Law Review
Liability of Carriers for Injuries Arising from Failure to Have Waiting Rooms Properly Heated; Special Assessments and Railroad Rights of Way; State and Federal Regulation Rates; Duty Toward Trespassing Children Where a Dangerous Article is Left in the Street; Collateral Attack on Injunctional Orders;