Law Commons^™

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill

Faculty Scholarship

It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. They were cousins. Augustus Hand was a few years older than Learned Hand but was appointed to the …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt

Faculty Scholarship

In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …