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Full-Text Articles in Law
Interpreting Legislative Inaction, William N. Eskridge Jr.
Interpreting Legislative Inaction, William N. Eskridge Jr.
Michigan Law Review
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court's legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia's critique of that case law and provides support for Justice Scalia's views by distinguishing actual and presumed legislative intent, arguing that, based on a conception …
Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber
Statutory Interpretation, Legislative Inaction, And Civil Rights, Daniel A. Farber
Michigan Law Review
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Farber identifies three issues which lie at the heart of Patterson: Must statutes be construed to conform to the intent of the drafters? Does legislative inaction provide reliable guidance to interpreters of statutes? And should the nature of the claim at issue - here a claim of civil rights - influence the interpreters? On this last point, Professor Farber argues that public values must be relevant to statutory interpretation and that judges …
Updating Statutory Interpretation, T. Alexander Aleinikoff
Updating Statutory Interpretation, T. Alexander Aleinikoff
Michigan Law Review
This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. Professor Aleinikoff examines in depth the first issue raised by Professor Farber. Using metaphors of the archeological and the nautical Professor Aleinikoff describes theories of originalism and their application to statutory interpretation. Concluding that there are nonoriginalist (or nonarcheological) elements implicit in these theories, he proceeds to consider how an explicitly nonoriginalist (or nautical) theory of interpretation might work He concludes by commenting on the application of such a theory to Patterson.
Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski
Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski
Faculty Scholarship
The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …