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Full-Text Articles in Law
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
Journal Articles
This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …
If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha
If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha
Notre Dame Law Review
Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges …
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Journal Articles
In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …