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Can The President Control The Department Of Justice?, Bruce A. Green Jan 2018

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.


A Secular Test For A Secular Statute, Abner S. Greene Jan 2016

A Secular Test For A Secular Statute, Abner S. Greene

Faculty Scholarship

This short essay argues that a secular test is available to determine what constitutes a “substantial burden” on religious exercise under the Religious Freedom Restoration Act. It takes issue with the Court’s approach that is more deferential to the claimant, and with approaches offered by Professors Sepinwall and Helfand. It resists Sepinwall’s argument that proximity in law tracks a subjective sense of complicity, and it takes issue with Helfand’s argument that examining the substantiality of burden would implicate the religious question doctrine.


Legislation And Regulation In The Core Curriculum: A Virtue Or A Necessity?, James J. Brudney Jan 2015

Legislation And Regulation In The Core Curriculum: A Virtue Or A Necessity?, James J. Brudney

Faculty Scholarship

The first-year curriculum at American law schools has been remarkably stable for more than 100 years. Many would say ossified. At Harvard, the First-Year Course of Instruction in 1879-80 consisted of Real Property, Contracts, Torts, Criminal Law and Criminal Procedure, and Civil Procedure. These five courses-focused heavily on judge-made common law-dominated Harvard's IL curriculum from the law school's founding into the 21st century. The same five subjects have long commanded the primary attention of first-year students at Fordham, founded in 1905, and at virtually every other U.S. law school throughout the 20th century. Starting in the 1990s, however, a growing …


The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff Jan 2015

The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff

Faculty Scholarship

No abstract provided.


Agora: Reflections On Zivotofsky V. Kerry Presidential Signing Statements And Dialogic Constitutionalism, Catherine Powell Jan 2015

Agora: Reflections On Zivotofsky V. Kerry Presidential Signing Statements And Dialogic Constitutionalism, Catherine Powell

Faculty Scholarship

When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotojsky v. Kerry (Zivotojsky lI), Jack Goldsmith hailed the decision as a "vindication" of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the "constitutionally ludicrous" work of an overreaching, "imperial presidency." Others in this Symposium and elsewhere have covered what a "bonanza" Zivotojsi II is for foreign relations law, the competing visions of foreign relations at the case's …


Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb Jan 2013

Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb

Faculty Scholarship

Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …


Distrust And Clarify: Appreciating Congressional Overrides, James J. Brudney Jan 2012

Distrust And Clarify: Appreciating Congressional Overrides, James J. Brudney

Faculty Scholarship

Deborah Widiss continues to make important contributions in an area of statutory interpretation that has been largely neglected: the consequences of congressional overrides. Professor Widiss previously demonstrated how the Supreme Court and lower courts often confine the reach of statutes that purposefully override prior court decisions, thereby reviving aspects of the overridden judicial interpretations as ―shadow precedents.‖ In Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, Professor Widiss addresses the Supreme Court‘s further expansion of judicial power in the aftermath of congressional disapproval. Faced with the override of its textual interpretation in one employment discrimination statute, the Court inferred …


Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson Jan 2010

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …


The Costs Of Consensus In Statutory Construction, Ethan J. Leib, Michael Serota Jan 2010

The Costs Of Consensus In Statutory Construction, Ethan J. Leib, Michael Serota

Faculty Scholarship

Finding methodological consensus for statutory interpretation cases is all the rage these days.1 Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s authoritative article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases—cases that have received far less attention than their federal counterparts—Gluck describes several …


Canon Shortfalls And The Virtues Of Political Branch Interpretive Assets Tribute Issue In Honor Of Philip P. Frickey: Festschrift, James J. Brudney Jan 2010

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 …


Gathering Moss: The Nrla's Resistance To Legislative Change , James J. Brudney Jan 2010

Gathering Moss: The Nrla's Resistance To Legislative Change , James J. Brudney

Faculty Scholarship

Why has the NLRA been so resistant to legislative change for more than 60 years? How was Congress able to enact two major labor relations laws within a 12-year period (1935 and 1947) but then unable to approve proposed reforms in the years since 1947? In an effort to answer these questions, the article closely examines contemporaneous newspaper accounts from the 1935 and 1947 legislative “successes” as well as from two more recent congressional “failures” in 1978 and 1992. The article’s examination proceeds based on an analytic framework borrowed from political scientist John Kingdon that posits a recurring interplay among …


Confirmatory Legislative History , James J. Brudney Jan 2010

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 …


Supreme Court As Interstitial Actor: Justice Ginsburg's Eclectic Approach To Statutory Interpretation Symposium: The Jurisprudence Of Justice Ruth Bader Ginsberg: A Discussion Of Fifteen Years On The U.S. Supreme Court, James J. Brudney Jan 2009

Supreme Court As Interstitial Actor: Justice Ginsburg's Eclectic Approach To Statutory Interpretation Symposium: The Jurisprudence Of Justice Ruth Bader Ginsberg: A Discussion Of Fifteen Years On The U.S. Supreme Court, James J. Brudney

Faculty Scholarship

The Supreme Court is in the midst of an extended debate regarding the proper approach to construing federal statutes. A number of Justices have engaged in heated dialogue addressing the pros and cons of textualism or intentionalism, as well as the virtues and limitations of Chevron deference. Although Justice Ginsburg has not participated in these judicial exchanges, she has adopted her own approach to the challenge of interpreting federal statutes. This Article explores Ginsburg’s approach by focusing on four opinions that construe federal criminal laws and three that interpret labor relations and anti-discrimination laws. The Article’s central thesis is that …


The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Distlear Jan 2009

The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Distlear

Faculty Scholarship

Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on …


Collateral Conflict: Employer Claims Of Rico Extortion Against Union Comprehensive Campaign , James J. Brudney Jan 2009

Collateral Conflict: Employer Claims Of Rico Extortion Against Union Comprehensive Campaign , James J. Brudney

Faculty Scholarship

The article addresses an important yet largely overlooked issue of statutory meaning and labor relations policy: employers’ aggressive use of civil RICO actions to chill coordinated union efforts in the organizing and bargaining arenas. Over the past 30 years, facing volatile economic conditions and complex corporate relationships, unions have mounted coordinated campaigns (aimed at consumers, public officials, lenders, the media, and the public) in order to help organize new workers and to renew collective bargaining relationships. These often high-profile campaigns have at times been quite successful. In response, employers since the late 1980s have invoked civil RICO’s broad language to …


Liberal Justices' Reliance On Legislative History, James J. Brudney, Corey Distlear Jan 2008

Liberal Justices' Reliance On Legislative History, James J. Brudney, Corey Distlear

Faculty Scholarship

This Article presents a strong case against the conventional wisdom that legislative history is a "politicized'" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part …


Intentionalism's Revival , James J. Brudney Jan 2007

Intentionalism's Revival , James J. Brudney

Faculty Scholarship

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter "BLMRod") that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007. The essay situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the …


Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court , James J. Brudney Jan 2007

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court , James J. Brudney

Faculty Scholarship

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain's highest court has used previously excluded legislative history materials in its judicial decisions. Although the Law Lords opened the door to reliance …


Recrafting A Trojan Horse: Thoughts On Workplace Governance In Light Of Recent British Labor Law Developments , James J. Brudney Jan 2006

Recrafting A Trojan Horse: Thoughts On Workplace Governance In Light Of Recent British Labor Law Developments , James J. Brudney

Faculty Scholarship

In June of 2000, Britain established a statutory union recognition procedure applicable to all private and public employers with more than twenty workers.For a country with a history of voluntarism in labor-management relations, the creation of a legal mechanism by which unions could compel recognition from employers was a major change. The Labour Party government modeled its new approach to a considerable extent on our National Labor Relations Act (NLRA).3 Unions seeking statutory recognition must apply through a government agency; disagreements over proposed unit size or scope are to be resolved early by the agency; the union must show majority …


Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear Jan 2005

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 …


Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein Jan 2005

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …


Decline And Fall Of Legislative History - Patterns Of Supreme Court Reliance In The Burger And Rehnquist Eras, The, James J. Brudney, Corey Distlear Jan 2005

Decline And Fall Of Legislative History - Patterns Of Supreme Court Reliance In The Burger And Rehnquist Eras, The, James J. Brudney, Corey Distlear

Faculty Scholarship

Reliance on legislative history in the Court's majority opinions has fallen from nearly 50 percent during the Burger era to less than 30 percent since 1985.


Recalibrating Federal Judicial Independence Symposium: Perspectives On Judicial Independence: Accountability And Separation Of Power Issues, James J. Brudney Jan 2003

Recalibrating Federal Judicial Independence Symposium: Perspectives On Judicial Independence: Accountability And Separation Of Power Issues, James J. Brudney

Faculty Scholarship

It is well settled that independent courts play a vital role in promoting rule-of-law and separation-of-powers norms. At the same time, judicial independence must be reconciled with other values that we also wish to recognize as foundational. Professor Brudney addresses two areas of controversy that are associated with the celebration of judicial autonomy in our legal culture. He first discusses the role of political and personal background factors in shaping judicial selection and influencing judicial outcomes. He explains why both the President and Congress have come to rely increasingly on such background factors when seeking to anticipate the broad contours …


Business Divisions From The Perspective Of The U.S. Banking System , Carl Felsenfeld, Genci Bilali Jan 2003

Business Divisions From The Perspective Of The U.S. Banking System , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

The Bank Holding Company Act of 1956 ("Act"),' as amended, most recently in 1999 by the Gramm-Leach-Bliley Act ("GLB") divides all economic activity into five groups. These groups are: 1) banking, 2) activities closely related to and a proper incident to banking; 3) activities of a financial nature; 4) activities complimentary to those of a financial nature; and 5) activities not of a financial nature. This article will explore these five groups of activities separately. The policies behind the divisions will be analyzed and questioned whether they serve the policies behind the Act. This article will also question whether the …


The Uniform State Law Process: Will The Uma And Ruaa Be Adopted By The States?, James J. Brudney Jan 2001

The Uniform State Law Process: Will The Uma And Ruaa Be Adopted By The States?, James J. Brudney

Faculty Scholarship

Most practicing attorneys and legal academics first become aware of uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy that generally attends uniform law ventures This overview of the uniform statutory process offers some perspective for proponents of the recently approved Uniform Mediation Act (UMA) and Revised Uniform Arbitration Act (RUAA) as they attempt to secure enactment in multiple state legislatures.


Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib Jan 2001

Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib

Faculty Scholarship

Proposals for practical institutional reforms are notoriously absent from discussions about deliberative democracy. It is imperative to engage in the “nuts and bolts” debate of just what kinds of changes we discourse theorists or deliberative democrats want to effect. Here I would like to try to synthesize a reform proposal of my own based upon three major assumptions. Without argument, I assume a largely discourse-theoretic view of democracy that takes for granted the republican virtue of collective self-government as well as the Kantian claim that each citizen should be the author of his own laws. I further assume that our …


Dissing Congress , Ruth Colker, James J. Brudney Jan 2001

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …


Congressional Accountability And Denial: Speech Or Debate Clause And Conflict Of Interest Challenges To Unionization Of Congressional Employees , James J. Brudney Jan 1999

Congressional Accountability And Denial: Speech Or Debate Clause And Conflict Of Interest Challenges To Unionization Of Congressional Employees , James J. Brudney

Faculty Scholarship

In 1995, Congress passed the Congressional Accountability Act, which applied federal workplace and anti-discrimination laws to Congress. Under the terms of the Act, Congress can prevent legislative staff from unionizing if the presence of organized employees would raise constitutional problems or present a conflict of interest. In this Article, Professor Brudney argues that these constitutional conflicts and issues do not pose sufficient concern to outweigh the workplace rights of congressional staff. Rather, he maintains that Congress, should either fulfill its obligations under the Act and allow legislative staff to unionize, or else enact a statute and explain the need for …


Mediation And Some Lessons From The Uniform State Law Experience , James J. Brudney Jan 1997

Mediation And Some Lessons From The Uniform State Law Experience , James J. Brudney

Faculty Scholarship

Virtually every practicing attorney and legal academic first encountered uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy of most uniform law ventures. Taking a harder look at the uniform statutory process and its products may allow participants in a new effort to set realistic goals, or at least assist them in anticipating problems they are likely to face. This Article offers an overview and some pointers regarding the distinct challenge of developing a successful uniform mediation law. It discusses problems that stem from the …


Work Of Knowledge , Abner S. Greene Jan 1996

Work Of Knowledge , Abner S. Greene

Faculty Scholarship

Interpretation involves the acquisition of knowledge. We are continually confronted with the results of purposive action. Sometimes these results are written texts, such as statutes or novels. Other times these results are events in the physical world, actions that we observe or the results of actions about which we are told. To make sense of these results of purposive action, that is, to make the results be more than just a jumble of sense impressions, the observer must find a way of organizing the material with which he or she is presented. These methods of organizing the results of purposive …