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Full-Text Articles in Law
Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer
Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer
Articles by Maurer Faculty
This is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. …
Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss
Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss
Articles by Maurer Faculty
In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …
The Dynamic Judicial Opinion, William D. Popkin
The Dynamic Judicial Opinion, William D. Popkin
Articles by Maurer Faculty
Eskridge's article on Dynamic Statutory Interpretation advances an aggressively pragmatic theory of interpretation but has had more influence among academics than judges because of a failure to attend to the problems of writing a candid, pragmatic and dynamic judicial opinion. This article argues that, although not free from doubt, a candid judicial opinion is preferable, and discusses how to write such an opinion - suggesting that judges rely on the "intent of the statute," not legislative intent; and adopt a personal/exploratory style in presenting their views.
Congressional Silence: A Tool Of Judicial Supremacy, Frank Edward Horack Jr.
Congressional Silence: A Tool Of Judicial Supremacy, Frank Edward Horack Jr.
Articles by Maurer Faculty
No abstract provided.
Constitutional Liberties And Statutory Construction, Frank Edward Horack Jr.
Constitutional Liberties And Statutory Construction, Frank Edward Horack Jr.
Articles by Maurer Faculty
No abstract provided.