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Full-Text Articles in Law

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail Sep 2021

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will ...


The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure Jan 2021

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

Scholarly Works

This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable ...


Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood Oct 2020

Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule ...


Rules, Tricks And Emancipation, Jessie Allen Jan 2020

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside ...


Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure Jan 2020

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

Scholarly Works

So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending claims in an ...


Pepperdine University School Of Law Legal Summaries, Analise Nuxoll Nov 2019

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Mens Rea Reform And Its Discontents, Benjamin Levin Jan 2019

Mens Rea Reform And Its Discontents, Benjamin Levin

Articles

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory ...


Justice Gorsuch's Views On Precedent In The Context Of Statutory Interpretation, Hillel Y. Levin Jan 2019

Justice Gorsuch's Views On Precedent In The Context Of Statutory Interpretation, Hillel Y. Levin

Scholarly Works

The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch’s apparent views on precedent in the ...


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Democratizing Interpretation, Anya Bernstein Nov 2018

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose ...


The Canon Wars, Anita S. Krishnakumar, Victoria Nourse Nov 2018

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan ...


The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart Jun 2018

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their ...


Legal Innocence And Federal Habeas, Leah Litman May 2018

Legal Innocence And Federal Habeas, Leah Litman

Articles

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence-the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them ...


Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson Jan 2018

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation ...


Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker Jan 2017

Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker

Scholarly Works

In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases ...


A Means To An Element: The Supreme Court's Modified Categorical Approach After Mathis V. United States, Michael Mcgivney Jan 2017

A Means To An Element: The Supreme Court's Modified Categorical Approach After Mathis V. United States, Michael Mcgivney

Journal of Criminal Law and Criminology

No abstract provided.


Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss Jan 2017

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Articles

No abstract provided.


Chevron's Interstitial Steps, Cary Coglianese Jan 2017

Chevron's Interstitial Steps, Cary Coglianese

Faculty Scholarship at Penn Law

The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication ...


Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey Oct 2016

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be ...


Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban Oct 2016

Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban

Michigan Journal of Environmental & Administrative Law

“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and ...


The Scrivener’S Error, Ryan D. Doerfler Jun 2016

The Scrivener’S Error, Ryan D. Doerfler

Northwestern University Law Review

It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are “absolutely clear.” The rationale is that if a court were to recognize a less clear error, it might be “rewriting” the statute rather than correcting a technical mistake.

This Article argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. Accordingly, because the current doctrine is designed to protect against one type of mistake ...


The Science Of Sociological Jurisprudence As A Methodology For Legal Analysis, Richard Langone Mar 2016

The Science Of Sociological Jurisprudence As A Methodology For Legal Analysis, Richard Langone

Touro Law Review

No abstract provided.


Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich May 2015

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich

Michigan Journal of Environmental & Administrative Law

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending ...


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 ...


A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele Jan 2015

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis ...


A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux Jan 2015

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Articles

No abstract provided.


The Puzzling Presumption Of Reviewability, Nicholas Bagley Mar 2014

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but was commonly ...


Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos Jan 2014

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.


The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan Dec 2013

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

This Article is a first-of-its-kind application of public choice theory to recently developing theories of virtue jurisprudence. Particularly, this Article focuses on not-yet-developed theories of aretaic (or virtue-centered) legislation. This Article speculates what the contours of such theories might be and analyzes the production of such legislation through a public choice lens. Any virtue jurisprudence theory as applied to legislation would likely demand that the proper ends of legislation be deemed as “the promotion of human flourishing” and the same would constitute the test by which we would determine the legitimacy of any legislation. As noble as virtuous behavior, virtuous ...


Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse May 2013

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is ...