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Articles 1 - 8 of 8
Full-Text Articles in Legal History
The Forgotten Unitary Executive Power: The Textualist, Originalist, And Functionalist Opinions Clause, Zachary J. Murray
The Forgotten Unitary Executive Power: The Textualist, Originalist, And Functionalist Opinions Clause, Zachary J. Murray
Pace Law Review
This article will analyze the Opinion Clause’s text, its history and intent, and its potential functions as a power. Part II catalogues much of the prior scholarship on the Opinions Clause, which generally fits into two categories: the anti-unitary approach, which argues that a substantive reading of the Vesting Clause renders the Opinions Clause redundant, and the unitary response, which essentially accepts that redundancy. To some extent, both sides miss the mark. The unitary approach misreads the text, assigning great substantive weight to the descriptive Vesting Clause, while assigning descriptive status to the substantive Opinions Clause. The anti-unitary approach, on …
Textualism And The Problem Of Scrivener's Error, John David Ohlendorf
Textualism And The Problem Of Scrivener's Error, John David Ohlendorf
Maine Law Review
Scrivener’s errors make easy prey for the gentle comedy of the bench and bar, much in the way that typographical errors in billboards, newspaper headlines, and church bulletins form an endless source of humor for late night talk show hosts. But theorists of legal interpretation have long seen that scrivener’s errors pose a more serious problem. The doctrine surrounding scrivener’s error stands considered as something of a cousin to the absurdity doctrine, which has roots extending to the earliest days of the American Republic. More recently, the post-legal-process revival of formalist approaches to statutory interpretation on the bench, and their …
The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine
The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine
Articles
Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, …
Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs
Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs
Michigan Law Review
Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …
The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato
The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato
Faculty Working Papers
How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations …
Can Legislatures Constrain Judicial Interpretation Of Statutes?, Anthony D'Amato
Can Legislatures Constrain Judicial Interpretation Of Statutes?, Anthony D'Amato
Faculty Working Papers
An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this …
Foreword: Nonjudicial Statutory Interpretation, William D. Popkin
Foreword: Nonjudicial Statutory Interpretation, William D. Popkin
Articles by Maurer Faculty
In the past decade the study of statutory interpretation has gone from benign neglect to intense scrutiny, but the emphasis has remained on interpretation by courts. This symposium takes a different approach. The major theme is that interpretation depends on the interpreter and that we can gain insight into statutory interpretation, even by courts, from analyzing the strengths and weaknesses of nonjudicial interpreters. Part I of this Foreword places the symposium in the broader setting of recent literature on statutory interpretation, briefly reviewing the major schools of thought and explaining the contributors' perspectives. Part II sets forth my own views …
Statutory Compilations Of Washington, Kelly Kunsch
Statutory Compilations Of Washington, Kelly Kunsch
Seattle University Law Review
This Article surveys the statutory compilations of Washington. Although Washington's laws have evolved through a gradual process, compilations of these laws have had a more sporadic development. This development culminated in the Revised Code of Washington (RCW), which has remained relatively uniform since its first publication in 1951. Still, familiarity with its antecedents remains important today.