Law Commons^™

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

Scholarly Works

In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen F. Ross

Journal Articles

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.

Immunity Under 42 U.S.C. § 1983: Interpretive Approach And The Search For The Legislative Will, David J. Achtenberg

Faculty Works

The Supreme Court has long struggled with immunity under 42 U.S.C. § 1983. Section 1983 is the principal statutory vehicle used to remedy constitutional violations committed by state and local officials. Expansion or contraction of official immunity under the statute effectively decreases or increases officials' incentives to avoid those violations. A broader immunity doctrine will lead to more constitutional violations. However, it will also lead to a greater willingness to attempt potentially useful innovations whose constitutionality has not yet been determined. A narrower immunity doctrine will reduce the number of constitutional violations. However, it will reduce officials' willingness to experiment. …

Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner

Articles

In the mid-1980s the Uniform Law Commission undertook a landmark revision of the American law of gratuitous transfers. These reforms culminated in a drastically revised Uniform Probate Code ("UPC"). The revisions inspired the Albany Law Review to organize this symposium issue for the purpose of examining the 1990 UPC. In this introductory paper, we point to the main themes of the reform movement, discuss some of the traits and constraints of the uniform law process, and comment on some of the suggestions and insights that appear in the symposium articles.

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

The Canons Of Construction In Georgia: "Anachronisms" In Action, R. Perry Sentell Jr.

Scholarly Works

Two initial observations may be tendered concerning the canons of interpretations: The literature, almost uniformly, discredits them; the courts, almost uniformly, employ them. The purpose of this effort is to reflect some sense of background, and illustratively to marshal the Georgia experiences with what are perhaps the three most famous canons of interpretation.

Statutory Interpretation And The Balance Of Power In The Administrative State, Cynthia R. Farina

Cornell Law Faculty Publications

Reaganist Realism Comes To Detriot, Stephen F. Ross

Journal Articles

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that …

Legislative Enforcement Of Equal Protection, Stephen F. Ross

Journal Articles

This Article explores the legislative role in enforcing the constitutional guarantee to equal protection. Part I describes the underenforcement principle that explains the restrictive judicial exercise of authority in constitutional matters. The Article then focuses on Congress' role in examining issues relating to the constitutional guarantee of equal protection that the courts have chosen to underenforce. Part II analyzes relevant constitutional provisions that may empower or limit congressional actions. Part III considers ways in which Congress can address state violations of equal protection through directives to the judiciary and through the legislative process. Part IV details how both federal and …

Warrantless Arrest Jurisdiction In Texas: An Analysis And A Proposal, Gerald S. Reamey, J. Daniel Harkins

Faculty Articles

Within the State of Texas, there exist a great number of “peace officers” who are granted a wide range of power and authority. This includes the power to make warrantless arrests and searches pursuant to those arrests. Significant ambiguity exists regarding a peace officer’s jurisdiction. The confusion is largely due to imprecise statutory language and varying judicial interpretations.

Article 998 of Texas Revised Civil Statutes, for example, bestowed on city police officers the same powers, authority, and jurisdiction as city marshals. The statute, though, neglected to define the extent of that jurisdiction, or even what “jurisdiction” meant in that context. …

Salute To A Great Legislative Draftsman: Elmer A. Driedger, Q. C., Reed Dickerson

Articles by Maurer Faculty

No abstract provided.

Law And Language: The Role Of Pragmatics In Statutory Interpretation, M. B.W. Sinclair

Articles by Maurer Faculty

In everyday conversation social conventions constrain our speech and aid understanding of the speech of others. These social conventions have been analyzed by the philosopher H.P. Grice and others. Professor Sinclair explores the applicability of such conventions to statutes and thereby derives a set of pragmatic rules of statutory construction. These rules explain some of the intuitions underlying "canons of construction" and their limitations and provide a basis for understanding and for criticizing some important judicial decisions.

The Supreme Court's Misconstruction Of A Procedural Statute-A Critique Of The Court's Decision In Badaracco, Douglas A. Kahn

Articles

When a taxpayer files an honest' federal income tax return for a taxable year, section 6501(a) of the Internal Revenue Code2 limits the period of time during which the Government can assess a tax for that year to a three-year period commencing with the date that the return was filed. The three-year limitations period is extended for an additional three years by section 6501(e)(1)(A) if the taxpayer's return omits properly includible gross income in an amount in excess of twenty-five percent of the gross income that was reported. If a taxpayer fails to file a return for a taxable year …

The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein

Articles

In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.

Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner

Articles

Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …

Kentucky Law Survey: Education, Carolyn S. Bratt

Law Faculty Scholarly Articles

This article provides a survey of Kentucky case law on the topic of education. During the past survey year, the Kentucky Court of Appeals decided several cases in which public education was the common denominator. Developments occurred in the areas of student discipline, merger of first class city-county school districts, and due process requirements for removal of tenured teachers. The most significant case, however, was Dorr v. Fitzer, which involved the authority of a county board of education to reject, without cause, a school superintendent's recommendation that a teacher with four consecutive limited service contracts be granted a continuing …

Statutory Interpretation: The Uses And Anatomy Of Context, Reed Dickerson

Articles by Maurer Faculty

Every communication that is generated by a written instrument consists of two elements which must be considered in arriving at the meaning of the communication. Those elements are: (1) the written vehicle itself, and (2) its surrounding context. The surrounding context which thus completes the communication consists only of those underlying cultural aspects which, when considered in relation to the written vehicle, are: (1) relevant to the written vehicle, (2) reliable, (3) shared by the author and the audience, and (4) relied on by both author and audience to complete the communication. The author suggests that those cultural elements which …

Better Organization Of Legal Knowledge, Layman E. Allen, Tomoyuki Ohta

Articles

The increasing need of legislatures to draft complicated statutes, e.g., the Internal Revenue Code, requires the development of new techniques for defining and communicating complicated policies both accurately and understandably. At present, these complicated statutes are expressed in long, convoluted sentences with frequent uses of exceptions and limitations. Current drafting technique, with its inadequacies, often hinders a comprehensive understanding of the policy being communicated and often fails to communicate the policy accurately. Moreover, with the voluminous increase of legal literature in recent times, legal researchers experience increasing difficulty in attempting to retrieve relevant judicial and administrative interpretations. The authors propose …

Statutory Interpretation: Core Meaning And Marginal Uncertainty, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.

Book Review. Legislative Drafting By Reed Dickerson, Frank Edward Horack Jr.

Articles by Maurer Faculty

No abstract provided.

Cooperative Action For Improved Statutory Interpretation, Frank Edward Horack Jr.

Articles by Maurer Faculty

No abstract provided.

Statutory Interpretation -- Light From Plowden's Reports, Frank Edward Horack

Articles by Maurer Faculty

No abstract provided.

When Is A Preferential Transfer 'Required' To Be Recorded? , Evans Holbrook

Articles

The BANKRUPTCY ACT of 1898 (as amended in 1903 and 1910), after defining a preference, provides in § 60b that preferences made under certain circumstances may be recovered from the preferred creditor if the latter had "reasonable cause to believe" that a preference was to be effected "at the time of the transfer * * * or of the recording or registering of the transfer if by law recording or registering thereof is required," such time being within four months before bankruptcy. Bankrupcty courts have for years been vexed with the question: When is a transfer "required" to be recorded …