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The Unbearable Rightness Of Auer, Cass R. Sunstein, Adrian Vermeule
The Unbearable Rightness Of Auer, Cass R. Sunstein, Adrian Vermeule
University of Chicago Law Review
For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the …
Chevron Step One-And-A-Half, Daniel J. Hemel, Aaron. L. Nielson
Chevron Step One-And-A-Half, Daniel J. Hemel, Aaron. L. Nielson
University of Chicago Law Review
The Supreme Court says that Chevron has two steps: Is the statute ambiguous (Step One), and, if so, is the agency's interpretation of the ambiguous provision a permissible one (Step Two)? Yet over the last three decades, the DC Circuit has inserted an intermediate step between Steps One and Two: Did the agency recognize that the statutory provision is ambiguous? If not, then the DC Circuit refuses to proceed to Chevron Step Two and remands the matter to the agency. This doctrine- which we dub "Chevron Step One-and-a-Half"-has led to dozens of agency losses in the DC Circuit and DC …
Reconsidering Substantive Canons, Anita Krishnakumar
Reconsidering Substantive Canons, Anita Krishnakumar
University of Chicago Law Review
This Article provides the first empirical study of the Roberts Court's use of substantive canons in statutory interpretation cases. Based on data from 296 cases, the Article argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons-for example, the rule of lenity, the avoidance canon, and the presumption against extraterritorial application of domestic laws- have long been criticized as undemocratic judge-made rules that defeat congressional intent, enable interpreters to massage different meanings out of the same text, and make statutory interpretation unpredictable. …
Content Neutrality And Commercial Speech Doctrine After Reed V Town Of Gilbert, Lee Mason
Content Neutrality And Commercial Speech Doctrine After Reed V Town Of Gilbert, Lee Mason
University of Chicago Law Review
No abstract provided.
Arguing In Good Faith About The Constitution: Ideology, Methodology, And Reflective Equilibrium, Richard H. Fallon Jr.
Arguing In Good Faith About The Constitution: Ideology, Methodology, And Reflective Equilibrium, Richard H. Fallon Jr.
University of Chicago Law Review
Nearly all of us who participate in constitutional argument in subjective good faith share a second-order methodology of constitutional decision-making—that is, an approach to working out both our first-order theories of constitutional interpretation and our judgments about appropriate results in particular cases. That shared method involves a search for reflective equilibrium between our prior or intuitive methodological assumptions (which sometimes may be vague or indeterminate) and our intuitive judgments concerning the appropriate results in particular cases. If our ex ante methodological theories are underdeterminate, reflection on new cases’ facts will lead us to specify our premises more fully. Moreover, in …
Congress, Statutory Interpretation, And The Failure Of Formalism: The Cbo Canon And Other Ways That Courts Can Improve On What They Are Already Trying To Do, Abbe R. Gluck
University of Chicago Law Review
The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked …
Analogy, Expertise, And Experience, Frederick Schauer, Barbara A. Spellman
Analogy, Expertise, And Experience, Frederick Schauer, Barbara A. Spellman
University of Chicago Law Review
Traditional legal perspectives on analogical reasoning in law posit that legal reasoning involves the initial step of recognizing a similarity between the facts of some previous case and the facts of the instant case. And the recently widespread skeptical views see the claims of analogical reasoning in law as little more than a mask for unacknowledged judicial lawmaking. Against both of these views, we argue that analogical reasoning, in law and elsewhere, involves an initial perception of similarity, but a perception that is based on the knowledge, experience, training, and possibly the expertise of the person drawing the analogy. As …
Corporate Governance Regulation Through Nonprosecution, Jennifer Arlen, Marcel Kahan
Corporate Governance Regulation Through Nonprosecution, Jennifer Arlen, Marcel Kahan
University of Chicago Law Review
Over the last decade, federal corporate criminal enforcement policy has undergone a significant transformation. Firms that commit crimes are no longer simply required to pay fines. Instead, prosecutors and firms enter into pretrial diversion agreements (PDAs). Prosecutors regularly use PDAs to impose mandates on firms, creating new duties that alter firms’ internal operations or governance structures. DOJ policy favors the use of such mandates for any firm with a deficient compliance program at the time of the crime. This Article evaluates PDA mandates to determine when and how prosecutors should use them to deter corporate crime. We find that the …
The Numerus Clausus Of Sex, Sonya K. Katyal
The Numerus Clausus Of Sex, Sonya K. Katyal
University of Chicago Law Review
There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity. Taking this …
Congressional Guidance On The Scope Of Magistrate Judges' Duties, Kelly Holt
Congressional Guidance On The Scope Of Magistrate Judges' Duties, Kelly Holt
University of Chicago Law Review
No abstract provided.
A Call For Developing A Field Of Positive Legal Methodology, William Baude, Adam S. Chilton, Anup Malani
A Call For Developing A Field Of Positive Legal Methodology, William Baude, Adam S. Chilton, Anup Malani
University of Chicago Law Review
This issue of The University of Chicago Law Review brings together leading scholars to discuss developing best practices for legal analysis. The goal of its organizers, however, is somewhat less modest: to encourage a movement that develops a positive legal methodology. Years of reading legal scholarship have convinced us that scholars ought to devote more attention to positive methodology— figuring out how to tell what the law is—something that may seem like second nature to most lawyers, but that often relies on intuition and armchair persuasion. To be sure, legal scholars have over time imported theory and methods from other …
Making Doctrinal Work More Rigorous:Lessons From Systematic Reviews, William Baude, Adam S. Chilton, Anup Malani
Making Doctrinal Work More Rigorous:Lessons From Systematic Reviews, William Baude, Adam S. Chilton, Anup Malani
University of Chicago Law Review
Legal scholars, lawyers, and judges frequently make positive claims about the state of legal doctrine. Yet despite the profligate citation norms of legal writing, these claims are often supported in a somewhat imprecise way—such that the exact evidence is unclear or difficult for others to probe or falsify. In response to similar issues, other disciplines have developed methodological standards for conducting “systematic reviews” that summarize the state of knowledge on a given subject. In this Essay we argue that methods for performing systematic reviews that are specifically tailored to legal analysis should be developed. We propose a simple fourstep process …
Doing Gloss, Curtis A. Bradley
Doing Gloss, Curtis A. Bradley
University of Chicago Law Review
It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …
The Absence Of Method In Statutory Interpretation, Frank H. Easterbrook
The Absence Of Method In Statutory Interpretation, Frank H. Easterbrook
University of Chicago Law Review
Many textualists see canons of interpretation as a means to deal with statutory ambiguity, while nontextualists are more likely to turn to legislative history. This Essay explores some of the problems with each approach: for canons, determining which context is the best one to analyze, and for legislative history, determining which statements are reliable and which are hot air.
Concepts Before Percepts: The Central Place Of Doctrine In Legal Scholarship, Richard A. Epstein
Concepts Before Percepts: The Central Place Of Doctrine In Legal Scholarship, Richard A. Epstein
University of Chicago Law Review
Modern legal scholarship often relegates doctrinal work to a lower-status tier than empirical research, economic modeling, and philosophical speculation. That move is a big mistake. It is only by knowing how cases fit together with each other and with some overarching theory of social welfare that it is possible to be sensible in applying current doctrine to legal disputes and in formulating alternative approaches. Initial theoretical mistakes cannot be cured by their repeated application, which only renders the law more confused and indeterminate than before. The consequences of root error are accordingly examined in three areas: consequential damages, personal jurisdiction, …
The Concepts Of Law, Tom Ginsburg, Nicholas Stephanopoulos
The Concepts Of Law, Tom Ginsburg, Nicholas Stephanopoulos
University of Chicago Law Review
Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual …
Qualitative Methods For Law Review Writing, Katerina Linos, Melissa Carlson
Qualitative Methods For Law Review Writing, Katerina Linos, Melissa Carlson
University of Chicago Law Review
Typical law review articles not only clarify what the law is, but also examine the history of the current rules, assess the status quo, and present reform proposals. To make theoretical arguments more plausible, legal scholars frequently use examples: they draw on cases, statutes, political debates, and other sources. But legal scholars often pick their examples unsystematically and explore them armed with only the tools for doctrinal analysis. Unsystematically chosen examples can help develop plausible theories, but they rarely suffice to convince readers that these theories are true, especially when plausible alternative explanations exist. This project presents methodological insights from …
Legal Research And Practical Experience, Richard A. Posner
Legal Research And Practical Experience, Richard A. Posner
University of Chicago Law Review
No abstract provided.
Originalist Methodology, Lawrence B. Solum
Originalist Methodology, Lawrence B. Solum
University of Chicago Law Review
This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role …
The (Not So) Plain Meaning Rule, William Baude, Ryan D. Doerfler
The (Not So) Plain Meaning Rule, William Baude, Ryan D. Doerfler
University of Chicago Law Review
When should a court interpreting some statutory provision consider information besides the text-legislative history, surrounding provisions, practical con-sequences, the statute's title, etc.? This might be one of the most asked questions of statutory interpretation.One recurring answer in the Court's cases is the "plain meaning rule," which is something of a compromise. If the statute's meaning is "plain," the other information can't be considered. If it isn't plain, the information comes in. The rule seems to make obvious sense as an intermediate position between strict textualism and some form of pragmatism.And yet, once we think a little more deeply about the …
Before Interpretation, Anya Bernstein
Before Interpretation, Anya Bernstein
University of Chicago Law Review
What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present …
Positive Pluralism Now, Paul Horwitz
Positive Pluralism Now, Paul Horwitz
University of Chicago Law Review
No abstract provided.
The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh
The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh
University of Chicago Law Review
This Article uncovers the history of a longforgotten English court system, the "fire courts," which Parliament established to resolve disputes between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts' remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment's right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use ofjuries in federal civil litigation. Parliament enacted firecourts legislation on eight occasions between …
The Business Of Defense: Defense-Side Litigation Financing, Emily Samra
The Business Of Defense: Defense-Side Litigation Financing, Emily Samra
University of Chicago Law Review
No abstract provided.
In Memoriam: Abner J. Mikva, Geoffrey R. Stone
In Memoriam: Abner J. Mikva, Geoffrey R. Stone
University of Chicago Law Review
No abstract provided.
The Paradox Of Access Justice, And Its Application To Mandatory Arbitration, Omri Ben-Shahar
The Paradox Of Access Justice, And Its Application To Mandatory Arbitration, Omri Ben-Shahar
University of Chicago Law Review
Access justice is one of the most appealing and least contentious regulatory techniques in law's repertoire. It aspires to give people equal opportunity to utilize certain primary goods, and it does so by assuring opennessthat access to these goods is not allocated by markets and is not tilted in favor of wealth or privilege. But access justice often fails to meet its egalitarian aspirations, because groups that are not the intended targets of the intervention deploy access and its benefits dispropor tionately. Paradoxically, access justice often benefits various elites while paid for directly by taxpayers and indirectly by weaker groups. …
Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy K. Kessler, David E. Pozen
Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy K. Kessler, David E. Pozen
University of Chicago Law Review
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We de velop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and costbenefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue …
Must The Government Waive Public Forum User Fees For Indigent Speakers?, Elizabeth Clarke
Must The Government Waive Public Forum User Fees For Indigent Speakers?, Elizabeth Clarke
University of Chicago Law Review
No abstract provided.
In Memoriam: Abner J. Mikva, Kenneth L. Adams
In Memoriam: Abner J. Mikva, Kenneth L. Adams
University of Chicago Law Review
No abstract provided.
Changed Countries, Changed Circumstances: Reopening Removal Proceedings Under 8 Usc Sec. 1229a, Philip M. Cooper
Changed Countries, Changed Circumstances: Reopening Removal Proceedings Under 8 Usc Sec. 1229a, Philip M. Cooper
University of Chicago Law Review
No abstract provided.