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Statutory interpretation

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Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak Dec 2023

Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak

William & Mary Bill of Rights Journal

Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of …


Revisiting The Fried Chicken Recipe, Zachary B. Pohlman Dec 2022

Revisiting The Fried Chicken Recipe, Zachary B. Pohlman

Notre Dame Law Review Reflection

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth-century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If …


Finding Original Public Meaning, James Macleod Jan 2021

Finding Original Public Meaning, James Macleod

Georgia Law Review

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute’s bar on discrimination “because of sex”—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists’ …


Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg Jan 2021

Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg

University of Michigan Journal of Law Reform

This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there …


Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott Apr 2020

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …


What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern Jan 2019

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …


In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr. Aug 2018

In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.

San Diego Law Review

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …


Interpretation As Statecraft: Chancellor Kent And The Collaborative Era Of American Statutory Interpretation, Farah Peterson May 2018

Interpretation As Statecraft: Chancellor Kent And The Collaborative Era Of American Statutory Interpretation, Farah Peterson

Maryland Law Review

No abstract provided.


An Essay Concerning Some Problems With The Constitutional-Doubt Canon, Benjamin M. Flowers Feb 2018

An Essay Concerning Some Problems With The Constitutional-Doubt Canon, Benjamin M. Flowers

Washington and Lee Law Review Online

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional- doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public …


"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain Jan 2018

"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain

St. John's Law Review

(Excerpt)

One of my favorite extra-judicial activities is meeting with law students, and it is a pleasure to be with you today. But it is a special privilege to come back to the Jamaica campus of St. John’s College from which I graduated 60 years ago, long before the Law School had moved here from Schermerhorn Street in Brooklyn, and when there was only one building on this former golf course.

I was honored to call Justice Scalia a role model and friend. What I hope to convey to you today, however, is the effect Justice Scalia’s tenure on the …


The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian Apr 2017

The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian

Journal of the National Association of Administrative Law Judiciary

While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although Congress …


On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr Oct 2016

On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr

Notre Dame Law Review

In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …


Is Textualism Required By Constitutional Separation Of Powers?, Ofer Raban Jan 2016

Is Textualism Required By Constitutional Separation Of Powers?, Ofer Raban

Loyola of Los Angeles Law Review

This article examines the often-heard claim that textualism in statutory interpretation is mandated by constitutional separation of powers. The claim is examined using both the formalist and the functionalist approaches to separation of powers doctrine under the Federal Constitution. As we shall see, these doctrinal inquiries quickly devolve into examinations of the purposes and justification of textualism, and of separating the three branches of government. The article concludes not only that standing constitutional doctrine fails to support the textualist claim, but also that, as a matter of fact, textualism is a judicial philosophy that runs counter to the most basic …


The Presidential Statutory Stretch And The Rule Of Law, Peter M. Shane Jan 2016

The Presidential Statutory Stretch And The Rule Of Law, Peter M. Shane

University of Colorado Law Review

No abstract provided.


Interpreting Force Authorization, Scott M. Sullivan Oct 2015

Interpreting Force Authorization, Scott M. Sullivan

Florida State University Law Review

This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in …


The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt May 2015

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …


Judge Posner's Simple Law, Mitchell N. Berman Apr 2015

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …


What A History Of Tax Withholding Tells Us About The Relationship Between Statutes And Constitutional Law, Anuj C. Desai Jan 2015

What A History Of Tax Withholding Tells Us About The Relationship Between Statutes And Constitutional Law, Anuj C. Desai

Northwestern University Law Review

No abstract provided.


Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin Jan 2015

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …


Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg May 2014

Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg

Michigan Law Review

Imagine two presidents. The first campaigned on an issue that requires him to expand the role of the federal government-—maybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushes policies—-financial deregulation, perhaps, or drug decriminalization—-that mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals. The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balances-—from …


Preemption And Textualism, Daniel J. Meltzer Oct 2013

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …


The Adam Walsh Act's Sex Offender Registration And Notification Requirements And The Commerce Clause: A Defense Of Congress's Power To Check The Interstate Movement Of Unregistered Sex Offenders, Matthew S. Miner Jan 2011

The Adam Walsh Act's Sex Offender Registration And Notification Requirements And The Commerce Clause: A Defense Of Congress's Power To Check The Interstate Movement Of Unregistered Sex Offenders, Matthew S. Miner

Villanova Law Review

The article discusses the Adam Walsh Act specifically the debate on the constitutionality of the Sex Offender Registration and Notification Act (SORNA) under the Commerce Clause. SORNA aims to set up a unified registry system to monitor sex abusers' movements across states facilitating crime prevention and resolution. It cites U.S. Supreme Court rulings that have established the authority of Congress to regulate interstate travel and illegal activities even if the threat is local in nature.


Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley Jan 2009

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …


Mccain’S Citizenship And Constitutional Method, Peter J. Spiro Jan 2008

Mccain’S Citizenship And Constitutional Method, Peter J. Spiro

Michigan Law Review First Impressions

Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.


Originalism And The Natural Born Citizen Clause, Lawrence B. Solum Jan 2008

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Michigan Law Review First Impressions

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.


Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin Jan 2008

Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin

Michigan Law Review First Impressions

Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.


The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt Jan 2007

The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt

Florida A & M University Law Review

This article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the "under color of" language of Sec. 1983 and the statute's application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with …


Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher Jan 2006

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

Vanderbilt Journal of Entertainment & Technology Law

The goal of this article is a very modest one: to use one piece of music, the first movement of Beethoven's Eroica symphony, to consider how legal scholars, using the doctrinal principles they have developed to interpret the Constitution, would interpret the piece as conductors. This article makes no pretense of offering a new genre of legal hermeneutics; there is no suggestion here that a "law and musicology" movement will provide a comprehensive analytical framework which we can use to solve problems of Constitutional interpretation. Rather, this article suggests that musical interpretative "doctrines"--if so loose a collection of practices merits …


The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet Dec 2001

The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet

University of Michigan Journal of Law Reform

Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to …


Potential Responsibility Under Cercla: Canadyne-Georgia Corp. V. Nationsbank, N.A. (South) - An Illustration Of Why We Need A Common Federal Rule Defining Owned And Operated, Timothy Holly Jan 2001

Potential Responsibility Under Cercla: Canadyne-Georgia Corp. V. Nationsbank, N.A. (South) - An Illustration Of Why We Need A Common Federal Rule Defining Owned And Operated, Timothy Holly

Villanova Environmental Law Journal

No abstract provided.