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Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy Dec 2001

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia ...


Baby Steps Or One Fell Swoop? The Incremental Extension Of Rights Is Not A Defensible Strategy, James Donovan Oct 2001

Baby Steps Or One Fell Swoop? The Incremental Extension Of Rights Is Not A Defensible Strategy, James Donovan

Law Faculty Scholarly Articles

The problem of incrementalism emerges from the common practice of limiting certain rights only to groups on certified lists.' Section I reviews this problem of the list, and how the failure of lists to include gay men and lesbians profoundly impacts their daily lives. Possible strategic responses to this problem (such as doing nothing, interpreting the current list to include us, eliminating the list altogether, or expanding the list to include us explicitly) are considered in Section II, concluding by focusing on a special kind of gradualism, list incrementalism. List incrementalism occurs when a right is extended to new groups ...