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Confirmatory Legislative History , James J. Brudney
Confirmatory Legislative History , James J. Brudney
Faculty Scholarship
Textualists and intentionalists regularly lock horns over the proper approach to construing statutory language regarded as inconclusive. The interpretive debate seems less contentious, however, when the words of the law are deemed clear. There may be reasonable disagreement as to whether the text at issue in a particular controversy has a plain meaning, but if it does then that meaning arguably preempts further inquiry. Since 1990, Supreme Court majority opinions are replete with declarations such as: "Given [a] straightforward statutory command, there is no reason to resort to legislative history"; or "we do not resort to legislative history to cloud …
Canon Shortfalls And The Virtues Of Political Branch Interpretive Assets Tribute Issue In Honor Of Philip P. Frickey: Festschrift, James J. Brudney
Canon Shortfalls And The Virtues Of Political Branch Interpretive Assets Tribute Issue In Honor Of Philip P. Frickey: Festschrift, James J. Brudney
Faculty Scholarship
As a legislation scholar, Philip Frickey was present at the creation.I Along with his coauthor William Eskridge, Frickey reconceptualized the field of legislation and statutory interpretation. In doing so, he opened the door to an unparalleled period of inquiry and debate about the meaning of statutes, among both judges and academics. The Eskridge and Frickey casebook, published in 1988, was justly hailed by Judge Richard Posner as having "done for legislation what Hart and Sacks did for legal process, or Hart and Wechsler for federal courts: it has demonstrated the existence of a subject." Over the ensuing two decades, Frickey …
Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear
Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear
Faculty Scholarship
Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …