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Articles 1 - 5 of 5
Full-Text Articles in Law
When Good Enough Is Not Good Enough, Karl Stampfl
When Good Enough Is Not Good Enough, Karl Stampfl
Michigan Law Review
According to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction-noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others-are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken-unless, of course, it is not. In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the …
Text(Plus-Other-Stuff)Ualism:Textualists' Perplexing Use Of The Attorney General's Manual On The Administrative Procedure Act, K. M. Lewis
Michigan Journal of Environmental & Administrative Law
Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach …
Interpretive Divergence All The Way Down: A Response To Aaron-Andrew P. Bruhl And Ethan J. Leib, Elected Judges And Statutory Interpretation, 79 U Chi L Rev 1215 (2012), Anita S. Krishnakumar
Interpretive Divergence All The Way Down: A Response To Aaron-Andrew P. Bruhl And Ethan J. Leib, Elected Judges And Statutory Interpretation, 79 U Chi L Rev 1215 (2012), Anita S. Krishnakumar
Faculty Publications
This article is a response to the law review article cited in its title. It focuses on a corollary question raised by the article's analysis: if one takes seriously the proposition that it may make sense for elected judges to interpret statutes differently than do appointed judges, should judicial opinions written by elected judges look substantially different from those written by appointed judges? Part I examines the relative roles of judicial opinions written by elected versus appointed judges in a world in which divergence is practiced. Part II explores specific ways in which we might want or expect an elected …
The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar
The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar
Faculty Publications
Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in 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 …