Law Commons^™

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

It's All Interpretation, All The Way Down, Or, The Reason We Call It The “Practice” Of Law: With Observations From Two Different Legal Systems, John R. Prince Iii

John R. Prince III

This article explores one aspect of the philosophy of law; not what it means to refer to “the law” but what it means to discuss the “practice of law.” That practice is identified as a discursive practice, one where a text is applied to a particular factual context, and thus an interpretive practice. However, the type of interpretation involved in the practice of law is not one of translating one verbal formulation of a rule into another verbal formulation, but the act of bridging the gap between the rule and what that rule means here, and now, in a particular …

The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum

Lawrence B. Solum

The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice—paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis—the claim that the linguistic …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Eric J. Segall

No abstract provided.

Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones

Brian Christopher Jones

Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.

Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan

John R Ablan

When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Ian C Bartrum

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional theory. …

Running Backs, Wolves, And Other Fatalities: How Manipulations Of Coherence In Legal Opinions Marginalize Violent Death, Jonathan Yovel

Jonathan Yovel

By examining legal cases that involve violent death and its marginalization by the courts, this essay looks into the relations between narrative coherence and narrative absurd in judicial opinions. Coherence, rather than a static, unequivocal characteristic of legal narratives, is studied here as a highly manipulable narrative and rhetorical performance. Giving a performative twist to reader-response approaches I do not really ask what is the meaning of this text (as construed by its reading)? but rather, working from the position of the text's discursive community, what does this text do? The reading of these cases explores how judicial narration and …