Jurisprudence Commons^™

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 …

Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank

Faculty Articles and Other Publications

This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the …