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Full-Text Articles in Law
The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander
The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander
Faculty Working Papers
Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …
Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss
Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss
Articles by Maurer Faculty
Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the …
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Articles
The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …