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Articles 1 - 30 of 41
Full-Text Articles in Law
Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib
Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib
Journal of Legislation
This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.
The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried
The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried
Georgetown Law Faculty Publications and Other Works
The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to …
Is Title Vii An "Anti-Discrimination" Law?, Anuj C. Desai
Is Title Vii An "Anti-Discrimination" Law?, Anuj C. Desai
University of Colorado Law Review Forum
No abstract provided.
Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker
Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker
Faculty Publications
Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.
This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …
The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman
The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman
William & Mary Law Review Online
Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding …
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.
This …
Fight Or Flight: The Ninth Circuit's Advancement Of Textualism During An Era Of Intentionalism In United States V. Lozoya, Zachary Remijas
Fight Or Flight: The Ninth Circuit's Advancement Of Textualism During An Era Of Intentionalism In United States V. Lozoya, Zachary Remijas
Pepperdine Law Review
The modern complexities of global interaction and accessibility have recently forced some federal courts to reconsider standards for determining proper venue for criminal defendants who commit offenses while engaged in transportation, particularly those involving interstate commerce and crimes spanning multiple districts. These courts’ application of two adversarial schools of statutory interpretation—textualism and intentionalism—has driven conflict between textualist jurisdictions adhering to the plain meaning of established constitutional and statutory sources, and intentionalist jurisdictions refraining from the “creeping absurdity” of establishing venue for certain in-transit offenses under the literal meaning of such provisions. This Note endorses the sensibility and superiority of the …
Conspiracy Liability And The Fcpa: The Second Circuit's Rare Interpretation Of The Fcpa In United States V. Hoskins And Its Potential Implications, Morgan R. Knudtsen
Conspiracy Liability And The Fcpa: The Second Circuit's Rare Interpretation Of The Fcpa In United States V. Hoskins And Its Potential Implications, Morgan R. Knudtsen
William & Mary Business Law Review
The scope of the Foreign Corrupt Practices Act (FCPA) is inherently difficult to ascertain. Over time, the SEC and DOJ have privately settled claims under the FCPA, leaving most interpretation to government agencies. Though agency interpretation happens frequently, there has been little interpretation over major questions such as who is subject to the FCPA’s jurisdiction and how far that jurisdiction extends. United States v. Hoskins, which was decided in August 2018, involved the FCPA, conspiracy, and foreign corporate officials. The Second Circuit in its decision subsequently limited the scope of the FCPA, holding that liability cannot extend to foreign …
Comparing Literary And Biblical Hermeneutics To Constitutional And Statutory Interpretation, Robert J. Pushaw Jr.
Comparing Literary And Biblical Hermeneutics To Constitutional And Statutory Interpretation, Robert J. Pushaw Jr.
Pepperdine Law Review
Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to a competent reader today. Second, “contextualists” maintain that verbal meaning depends on generally shared linguistic conventions in the particular historical and cultural environment of the author—and that therefore translations or commentaries are necessary to make the writing intelligible to a modern reader. Third, “hermeneutic circle” scholars argue that texts have no objective meaning. Rather, a person’s subjective …
The Ethical Tax Judge, Kim Brooks
The Ethical Tax Judge, Kim Brooks
Articles, Book Chapters, & Popular Press
This chapter advances the claim that judges have an ethical obligation of competence that requires them to enhance their knowledge about language (in the context of statutory interpretation) and income tax law design and policy. It articulates some of the foundational understandings that support that competence and provides a simple hierarchy of approaches to interpreting income tax law. It concludes by contending that greater competence is not only more ethical but also advances other important societal goals fulfilled by the imposition of income tax systems.
Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka
Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka
Washington and Lee Law Review
This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.
Going "Clear", Ryan D. Doerfler
Going "Clear", Ryan D. Doerfler
All Faculty Scholarship
This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …
Feminist Statutory Interpretation, Kim Brooks
Feminist Statutory Interpretation, Kim Brooks
Articles, Book Chapters, & Popular Press
Leading Canadian scholar Ruth Sullivan describes the act of statutory interpretation as a mix of art and archeology. The collection, Feminist Judgments: Rewritten Tax Opinions, affirms her assessment. If the act of statutory interpretation requires us to deploy our interdisciplinary talents, at least somewhat unmoored from the constraints of formal expressions of legal doctrine, why haven’t feminists been more inclined to write about statutory interpretation? Put another way, some scholars acknowledge that judges “are subtly influenced by preconceptions, endemic privilegings and power hierarchies, and prevailing social norms and ‘conventional’ wisdom.” Those influences become the background for how judges read legislation. …
Private Law In The Gaps, Jeffrey A. Pojanowski
Private Law In The Gaps, Jeffrey A. Pojanowski
Jeffrey A. Pojanowski
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
Confounded Collectors, Confused Consumers: Time To Close The Circuit Split On Whether The Fair Debt Collection Practices Act Requires A Consumer To Dispute A Debt In Writing, Daniel O'Connell
Catholic University Law Review
The Fair Debt Collection Practices Act (FDCPA) provides that a debt collector must notify a consumer that it will assume a debt to be valid unless the consumer challenges the debt within thirty days. The FDCPA does not explicitly require the consumer to challenge the debt in writing. The Third Circuit requires written disputes, while the Second, Fourth, and Ninth Circuits permit oral disputes. This Comment discusses the reasoning and conclusions at play in this circuit split. The Comment argues that while both sides of the debate present meritorious arguments, permitting oral disputes for purposes of rebutting the debt collector’s …
Hayekian Statutory Interpretation: A Response To Professor Bhatia, John Ehrett
Hayekian Statutory Interpretation: A Response To Professor Bhatia, John Ehrett
John Ehrett
In this Essay, I challenge Professor Gautam Bhatia’s recent claim that a Hayekian worldview offers the most rational framing of the philosophical vision underlying Justice Scalia’s jurisprudence. I argue that Hayek’s conception of law, more properly understood, emphasizes the context of social interaction patterns, rather than focusing exclusively on individual autonomous agents. I subsequently trace the resulting implications for interpretive methodology that flow from this distinction, and ultimately address the discontinuities between the normative visions of liberty espoused by Hayek and Scalia.
Lessons Unlearned: The Effects Of Statutory Ambiguity And The Interpretative Uncertainty It Injects In The Courts, Carolyn Singh
Lessons Unlearned: The Effects Of Statutory Ambiguity And The Interpretative Uncertainty It Injects In The Courts, Carolyn Singh
University of the District of Columbia Law Review
For centuries, courts have dealt with the challenge of imposing penalties for crimes when governing law changes. Applying the new provisions can be a straightforward exercise for courts, but when legislatures are ambiguous with regard to which law applies-forexample, to pending cases-the courts are forced to interpret what legislatures intended. For some judges, the answer is easily found in the plain meaning of the text. For others, legislative intent can become the deciding factor. Throughout United States history, this has been a manageable yet controversial task, but aside from interpretive differences among judges, creating laws with uncertainty is a dangerous …
Hearing Voices: Judicial Consideration Of Ontario’S Social Assistance Legislation, Teri Muszak
Hearing Voices: Judicial Consideration Of Ontario’S Social Assistance Legislation, Teri Muszak
Electronic Thesis and Dissertation Repository
Legal decision-makers use language that can convey unwarranted assumptions about poverty and the poor. These assumptions can be challenged by analyzing the words that judges and adjudicators use when writing about, talking about, and applying social assistance legislation. In many instances, these assumptions do not align with the lived-experience of persons who receive government income support. This thesis aims to uncover the assumptions made in appellate-level decisions through the method of discourse analysis. It uses discourse theory to suggest that the ways imprecise words are given meaning in a legal field can have a profound influence on how the law …
Private Law In The Gaps, Jeffrey A. Pojanowski
Private Law In The Gaps, Jeffrey A. Pojanowski
Journal Articles
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest
Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest
Mark DeForrest
ARTICLE ABSTRACT
TAMING A DRAGON:
LEGISLATIVE HISTORY IN LEGAL ANALYSIS
Mark DeForrest
The use of legislative history in statutory interpretation and analysis has been an area of intensive inquiry since the 1980’s. The debate has been vigorous and has led to the development of sophisticated arguments by both the advocates of the use of legislative history and textualists critical of its use. While the debate has been ongoing, changes in technology have made it easier than ever to access detailed legislative history for both state and federal statutes. This article discusses the impact of both the debate and the technological …
How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers
How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers
Pepperdine Law Review
No abstract provided.
Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso
Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso
Pepperdine Law Review
No abstract provided.
Rediscovering A Principled Commerce Power , Douglas W. Kmiec
Rediscovering A Principled Commerce Power , Douglas W. Kmiec
Pepperdine Law Review
No abstract provided.
Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales
Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales
Pepperdine Dispute Resolution Law Journal
This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …
Writer's Block: Why Punctuation Matters, Part Two, David Spratt
Writer's Block: Why Punctuation Matters, Part Two, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor
Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor
Articles
It is a common metaphor that the text is a window onto the world that it depicts. In legal interpretation, the metaphor has been developed in two ways – the legal text as transparent or opaque – and the Article proposes a third – the legal text as translucent. The claim that the legal text is transparent has been associated with more liberal methodological approaches. According to this view (often articulated by critics), the legal text does not markedly delimit meaning. Delimitation comes from the interpreters. By contrast, stress on the opacity of the legal text comes from those who …
Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard
Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard
Todd S Aagaard
This Article examines factual premises of statutory interpretation in agency review cases, and proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do so, courts generally assume that they retain the authority to decide the factual premises and thereby to answer questions of statutory interpretation that depend on factual premises. This is problematic from a functional standpoint, because courts often lack the information or expertise necessary to assess these underlying facts …
Full Faith And Credit In The Early Congress, Stephen E. Sachs
Full Faith And Credit In The Early Congress, Stephen E. Sachs
Stephen E. Sachs
After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due? This Article seeks to …
Ruth Bader Ginsburg And Sensible Pragmatism In Federal Jurisdictional Policy, Tobias Barrington Wolff
Ruth Bader Ginsburg And Sensible Pragmatism In Federal Jurisdictional Policy, Tobias Barrington Wolff
All Faculty Scholarship
This article, written as part of a symposium celebrating the work of Justice Ruth Bader Ginsburg on the occasion of her fifteenth year on the Supreme Court, examines the strain of sensible legal pragmatism that informs Justice Ginsburg's writing in the fields of Civil Procedure and Federal Jurisdiction. Taking as its point of departure the Supreme Court's decision in City of Chicago v. International College of Surgeons, in which Ginsburg dissented, the article develops an argument against strict textualism in federal jurisdictional analysis. In its place, the article urges a purposive mode of interpretation that approaches jurisdictional text with a …
John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs
John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs
Stephen E. Sachs
Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the …