Law Commons^™

Formulaic Deliberation, Andre L. Smith

ExpressO

Formulaic Deliberation describes the major interpretive regimes--textualism, intentionalism, purposivism, and pragmatism—and represents them formulaically. By classifying them this way, it more precisely describes them as theories, so that we can more precisely perform them as deliberative techniques. And, if we agree that none of them, individually, fits all cases at all times, we can formulaically describe how to synthesize them toward a discrete decision.

William Eskridge, Stanley Fish, Hon. Antonin Scalia, Richard Posner, Ronald Dworkin, John Hart Ely, Adrian Vermeule, Hon. Stephen Breyer, Cass Sunstein, Lawrence Lessig. All of them are right, their method for deciding cases produces benefits with …

Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn

ExpressO

In the Supreme Court's two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA's enormous project of restoring the chemical, physical, and biological integrity of the Nation's waters. In this essay, I argue that the way the Court went about resolving its differences …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …