Jurisprudence Commons^™

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Journal of Legislation

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Enticing The Supreme Court To Hold That Physical Contact Is Not Required To Violate The Child Enticement Statute, Cassidy Eckrote

Dickinson Law Review (2017-Present)

The sexual exploitation of children is a growing problem in the United States. Fifty years ago, parents feared their child getting kidnapped or approached by a predator in the park. Parents today fear their child being preyed upon through the internet. As technology continues to advance, child predators satisfy their depraved desires without ever stepping foot near their victim. In response to the danger of the sexual exploitation of children, the federal government enacted the child enticement statute, codified at 18 U.S.C. § 2422(b). The statute criminalizes the enticement of a minor to engage in sexual activity. Because the federal …

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka

Washington and Lee Law Review

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.

Going "Clear", Ryan D. Doerfler

All Faculty Scholarship

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …

Feminist Statutory Interpretation, Kim Brooks

Articles, Book Chapters, & Popular Press

Leading Canadian scholar Ruth Sullivan describes the act of statutory interpretation as a mix of art and archeology. The collection, Feminist Judgments: Rewritten Tax Opinions, affirms her assessment. If the act of statutory interpretation requires us to deploy our interdisciplinary talents, at least somewhat unmoored from the constraints of formal expressions of legal doctrine, why haven’t feminists been more inclined to write about statutory interpretation? Put another way, some scholars acknowledge that judges “are subtly influenced by preconceptions, endemic privilegings and power hierarchies, and prevailing social norms and ‘conventional’ wisdom.” Those influences become the background for how judges read legislation. …

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Marquette Law Review

This Article studies statutory interpretation as it is practiced in the federal

courts of appeal. Much of the academic commentary in this field focuses on the

Supreme Court, which skews the debate and unduly polarizes the field. This

Article investigates more broadly by looking at the seventy-two federal

appellate cases that cite King v. Burwell in the two years after the Court issued

its decision. In deciding that the words “established by the State” encompass

a federal program, the Court in King reached a pragmatic and practical result

based on statutory scheme and purpose at a fairly high level of …

Intangible Fish And The Gulf Of Understanding: Yates V. United States And The Court's Approach To Statutory Interpretation, John M. Garvin

Indiana Law Journal

Is a fish a tangible object? The answer in most cases is obviously “yes.” But in Yates v. United States, the Supreme Court held that fish are outside the meaning of the phrase “tangible object” as it is used in the Sarbanes–Oxley Act of 2002. This Note argues that the Yates decision provides a lens with which to examine the Court’s contemporary methods of statutory interpretation. In adopting the textualist vocabulary most famously associated with the late Justice Scalia, the Justices have committed to speaking the same language. Still, fundamental differences between the Justices remain. These differences expose the …

Interpreting Wisconsin Statutes, Daniel R. Suhr

Marquette Law Review

"The seminal case on statutory interpretation in recent years is State ex rel. Kalal v. Circuit Court for Dane County, 2014 WI 58. . . . In Kalal, the court emphasized the importance of statutory text when it embraced the principle that a court's role is to determine what a statute means rather than determine what the legislature intended." - Wisconsin Supreme Court Justice David Prosser, 2014.

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso

Pepperdine Law Review

No abstract provided.

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor

Articles

It is a common metaphor that the text is a window onto the world that it depicts. In legal interpretation, the metaphor has been developed in two ways – the legal text as transparent or opaque – and the Article proposes a third – the legal text as translucent. The claim that the legal text is transparent has been associated with more liberal methodological approaches. According to this view (often articulated by critics), the legal text does not markedly delimit meaning. Delimitation comes from the interpreters. By contrast, stress on the opacity of the legal text comes from those who …

Ugly American Hermeneutics, Francis J. Mootz Iii

Scholarly Works

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

Ugly American Hermeneutics, Francis J. Mootz Iii

Nevada Law Journal

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan

Matthew Parlow

Legal Context: Reading Statutes In Light Of Prevailing Legal Precedent, Bradford Mank

Faculty Articles and Other Publications

An important question is when judges should consider contextual evidence about the meaning of a statute. Judges usually will read a statute's text in light of judicial precedent prevailing at the time of its enactment to understand the contemporary meaning of various words or phrases in the statute.' A more difficult issue is whether courts should consider contemporary judicial context if a statute's text is silent about an issue. The use of contemporary context to imply statutory meaning has been especially controversial where the issue is whether courts should imply a private right of action.

Textual Imagination, Mary D. Fan

Articles

Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …