Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (55)
- Legislation (35)
- Jurisprudence (34)
- Judges (24)
- Supreme Court of the United States (21)
-
- Courts (19)
- Legal History (13)
- Public Law and Legal Theory (11)
- Law and Philosophy (10)
- Civil Rights and Discrimination (7)
- First Amendment (7)
- Social and Behavioral Sciences (7)
- Law and Politics (6)
- Tax Law (6)
- Administrative Law (5)
- Civil Procedure (5)
- Jurisdiction (5)
- Labor and Employment Law (5)
- Arts and Humanities (4)
- Election Law (4)
- Law and Society (4)
- Political Science (4)
- Property Law and Real Estate (4)
- Antitrust and Trade Regulation (3)
- Contracts (3)
- Fourteenth Amendment (3)
- Health Law and Policy (3)
- Law and Economics (3)
- Legal Writing and Research (3)
- Institution
-
- Georgetown University Law Center (21)
- University of Colorado Law School (11)
- University of Michigan Law School (10)
- University of Pennsylvania Carey Law School (9)
- Columbia Law School (8)
-
- George Washington University Law School (5)
- Cleveland State University (4)
- University of Arkansas at Little Rock William H. Bowen School of Law (4)
- University of Baltimore Law (4)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (4)
- University of Richmond (3)
- University of Washington School of Law (3)
- Boston University School of Law (2)
- Florida State University College of Law (2)
- St. John's University School of Law (2)
- UIdaho Law (2)
- University of Kentucky (2)
- Vanderbilt University Law School (2)
- Wayne State University (2)
- Cornell University Law School (1)
- Emory University School of Law (1)
- Florida International University College of Law (1)
- Fordham Law School (1)
- Maurer School of Law: Indiana University (1)
- Northern Illinois University (1)
- Notre Dame Law School (1)
- Saint Louis University School of Law (1)
- St. Mary's University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Cincinnati College of Law (1)
- Publication Year
- Publication
-
- Georgetown Law Faculty Publications and Other Works (21)
- Faculty Scholarship (16)
- Articles (15)
- All Faculty Scholarship (14)
- Publications (11)
-
- Faculty Publications (5)
- GW Law Faculty Publications & Other Works (5)
- Scholarly Works (5)
- Law Faculty Articles and Essays (4)
- Law Faculty Publications (3)
- Faculty Articles (2)
- Law & Economics Working Papers (2)
- Law Faculty Research Publications (2)
- Law Faculty Scholarly Articles (2)
- Law Faculty Scholarship (2)
- Scholarly Publications (2)
- Vanderbilt Law School Faculty Publications (2)
- Articles by Maurer Faculty (1)
- College of Law Faculty Publications (1)
- Cornell Law Faculty Publications (1)
- Faculty Articles and Other Publications (1)
- Journal Articles (1)
- Scholarly Articles (1)
Articles 1 - 30 of 119
Full-Text Articles in Law
Who Cares Whether A Monopoly Is Efficient? The Sherman Act Is Supposed To Ban Them All, Robert H. Lande
Who Cares Whether A Monopoly Is Efficient? The Sherman Act Is Supposed To Ban Them All, Robert H. Lande
All Faculty Scholarship
Section 2 of the Sherman Act was designed to impose sanctions on all firms that monopolize or attempt to monopolize regardless whether the firm engaged in anticompetitive conductor, and regardless whether the firm is efficient. This conclusion emerges from a textualist analysis of the language of Section 2. This article briefly analyzes contemporaneous dictionaries, legal treatises, and cases, and demonstrates that when the Sherman Act was passed the word “monopolize” simply meant that someone had acquired a monopoly. The term was not limited to monopolies acquired through anticompetitive conduct or monopolies that were inefficient. An attempt to monopolize also had …
Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott Macguidwin
Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker, Scott Macguidwin
Law & Economics Working Papers
The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.
As part of the Notre Dame Law Review’s Symposium on the History of the Ad- ministrative Procedure Act …
A Response To Professor Choi’S Beyond Purposivism In Tax Law, Reuven S. Avi-Yonah
A Response To Professor Choi’S Beyond Purposivism In Tax Law, Reuven S. Avi-Yonah
Law & Economics Working Papers
This response to Professor Choi’s excellent article questions whether the proposals made by the article can solve the tax shelter problem, and argues that a better response is to bolster purposivism with a statutory general anti-abuse rule (GAAR).
Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman
Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman
Faculty Scholarship
Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.
MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …
When Judges Were Enjoined: Text And Tradition In The Federal Review Of State Judicial Action, Alexandra Nickerson, Kellen R. Funk
When Judges Were Enjoined: Text And Tradition In The Federal Review Of State Judicial Action, Alexandra Nickerson, Kellen R. Funk
Faculty Scholarship
It is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime. In such cases, injunctive relief against judicial officers may be the only or most effective remedy against constitutional violations, but federal courts from the trial level up to …
Ordinary Meaning And Ordinary People, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse
Ordinary Meaning And Ordinary People, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse
Georgetown Law Faculty Publications and Other Works
This Article considers the relationship between ordinary meaning and ordinary people in legal interpretation. Many jurists give interpretive weight to the law's ordinary meaning (i.e., general, nontechnical meaning). Modern textualists adopt a strong commitment to ordinary meaning and justify it by alluding to ordinary people: people understand law to communicate ordinary meanings. This Article begins from this textualist premise and empirically examines the meaning that legal texts communicate to the public. Five original empirical studies reveal that ordinary people consider genre carefully, and regularly take phrases in law to communicate technical legal meanings, not only ordinary ones. Building on the …
Textualism In Practice, Anita S. Krishnakumar
Textualism In Practice, Anita S. Krishnakumar
Georgetown Law Faculty Publications and Other Works
It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the …
Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker
Interpreting The Administrative Procedure Act: A Literature Review, Christopher J. Walker
Articles
The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.
As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and …
Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan
Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan
Scholarly Works
Rule 407 of the Federal Rules of Evidence, the “Subsequent Remedial Measures” Rule, is troubling. This exclusionary rule of evidence prohibits using subsequent remedial measures to demonstrate negligence, culpable conduct, or product defect. But, other than in the title of the rule, the phrase “subsequent remedial measures” does not appear anywhere in the rule’s text and the rule itself does not expressly define what measures fall within its purview. This omission creates space for different judicial interpretations of the rule’s language and ultimately disparate judicial outcomes. Although the Federal Rules of Evidence lend themselves to fact-specific inquiries that can lead …
Dueling Textualisms Or Multimodal Analysis? Using Bostock To Show Why No One Is Really A Textualist, Anne Marie Lofaso
Dueling Textualisms Or Multimodal Analysis? Using Bostock To Show Why No One Is Really A Textualist, Anne Marie Lofaso
Law Faculty Scholarship
No abstract provided.
Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw
Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw
Articles
This piece offers an extended critique of one aspect of the so-called "independent state legislature" theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I's Elections Clause, which provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article H's Presidential Electors Clause, which provides that "[e]ach State shall appoint, in such Manner as the Legislature …
Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader
Faculty Scholarship
“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …
Vesting, Jed Handelsman Shugerman
Vesting, Jed Handelsman Shugerman
Faculty Scholarship
"The executive Power shall be vested in a President of the United States of America." The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that "vest" connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about "vesting" for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine …
Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law
Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law
Law Faculty Research Publications
Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us …
Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.
Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.
Faculty Articles
This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …
When A Statute Comes With A User Manual: Reconciling Textualism And Uniform Acts, Gregory A. Elinson, Robert H. Sitkoff
When A Statute Comes With A User Manual: Reconciling Textualism And Uniform Acts, Gregory A. Elinson, Robert H. Sitkoff
College of Law Faculty Publications
This Article develops an interpretive theory for statutes that originate as Uniform Acts promulgated by the Uniform Law Commission. Although overlooked in the literature on statutory interpretation, state-enacted Uniform Acts are ubiquitous. They shape our life cycles—governing marriage, parentage, divorce, and death—and structure trillions of dollars in daily commercial transactions.
Largely focusing on textualism, today’s dominant form of statutory interpretation, we analyze the interpretive consequences of two unusual features of state-enacted Uniform Acts. First, the text of every Uniform Act directs courts to interpret it to “promote uniformity.” Second, each provision is accompanied by an official explanatory comment, analogous to …
Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse
Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse
Georgetown Law Faculty Publications and Other Works
How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …
Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah Litman, Katherine Shaw
Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah Litman, Katherine Shaw
Articles
This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I’s Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “[e]ach State shall appoint, in such Manner as the Legislature …
Does Justice Have A Syntax?, Steven L. Winter
Does Justice Have A Syntax?, Steven L. Winter
Law Faculty Research Publications
No abstract provided.
Antitrust Antitextualism, Daniel A. Crane
Antitrust Antitextualism, Daniel A. Crane
Articles
Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …
The Constitution And Democracy In Troubled Times, John M. Greabe
The Constitution And Democracy In Troubled Times, John M. Greabe
Law Faculty Scholarship
Does textualism and originalism approach positively impact democracy?
Queering Bostock, Jeremiah A. Ho
Queering Bostock, Jeremiah A. Ho
All Faculty Scholarship
Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases …
Proving Discrimination By The Text, Deborah Widiss
Proving Discrimination By The Text, Deborah Widiss
Articles by Maurer Faculty
Employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, they funnel the evidence through a convoluted body of judge-made law known as McDonnell Douglas burden shifting.
This Article lays bare fundamental inconsistencies between the statutes’ causal language, as definitively interpreted by the Supreme Court in recent cases, and the burden-shifting process. In Bostock v. Clayton …
The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure
The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure
Scholarly Works
This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …
Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi
Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi
All Faculty Scholarship
In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while …
A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye
A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye
Law Faculty Scholarly Articles
For numberless generations, jurisprudes waged total war in the
conflict among textualism, intentionalism, and purposivism.
Textualists insisted that courts must interpret statutes based on the
meaning of their text, intentionalists insisted on the intention of the
legislature, and purposivists insisted on the purpose of the statute.
Eventually, textualism prevailed. Courts universally recognize
that they are obligated to interpret statutes in light of their text, or
at least pretend that the text of the statute determined their
interpretation. And the few remaining heretics are swiftly identified
and corrected by their superiors. As Justice Kagan famously
observed, “We’re all textualists now.” Whether …
Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande
Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande
All Faculty Scholarship
The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:
1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My …
Contract Interpretation And The Parol Evidence Rule: Toward Conceptual Clarification, Joshua M. Silverstein
Contract Interpretation And The Parol Evidence Rule: Toward Conceptual Clarification, Joshua M. Silverstein
Faculty Scholarship
Contract interpretation is one of the most important topics in commercial law. Unfortunately, the law of interpretation is extraordinarily convoluted. In essentially every American state, the jurisprudence is riddled with inconsistency and ambiguity. This causes multiple problems. Contracting parties are forced to expend additional resources when negotiating and drafting agreements. Disputes over contractual meaning are more likely to end up in litigation. And courts make a greater number of errors in the interpretive process. Together, these impacts result in significant unfairness and undermine economic efficiency. Efforts to remedy the doctrinal incoherence are thus warranted.
The goal of this Article is …
Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure
Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure
Scholarly Works
So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.
Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …
The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.
The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.
All Faculty Scholarship
The drafters of the Sherman Act originally designed Section 2 to impose
sanctions on all monopolies and attempts to monopolize, regardless whether the
firm had engaged in anticompetitive conduct. This conclusion emerges from the
first ever textualist analysis of the language in the statute, a form of interpretation
originally performed only by Justice Scalia but now increasingly used by the
Supreme Court, including in its recent Bostock decision.
Following Scalia’s methodology, this Article analyzes contemporaneous
dictionaries, legal treatises, and cases and demonstrates that when the Sherman
Act was passed, the word “monopolize” simply meant that someone had acquired
a monopoly. …