Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 12 of 12

Full-Text Articles in Law

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 is now …


Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy Aug 2001

Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …


Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg Jan 2001

Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg

Law Faculty Scholarly Articles

This article concerns trademark law's functionality doctrine and the Supreme Court's troublesome opinion concerning it in TrafFix Devices, Inc. v. Marketing Displays, Inc. The doctrine provides that if a producer's useful or aesthetic design feature is "functional," then competitors can lawfully copy it even if the feature otherwise would be protected against copying by trademark principles. In order to introduce the functionality doctrine and the trouble with TrafFix, it is helpful to describe the nature of design features, the simultaneous roles they may play as source-identifying trade symbols and as useful or aesthetic product elements, and trademark law's place …


Indian Religious Freedom: To Litigate Or Legislate?, Louis Fisher Jan 2001

Indian Religious Freedom: To Litigate Or Legislate?, Louis Fisher

American Indian Law Review

No abstract provided.


Jurisdiction Of Ute Reservation Lands, John D. Barton, Candace M. Barton Jan 2001

Jurisdiction Of Ute Reservation Lands, John D. Barton, Candace M. Barton

American Indian Law Review

No abstract provided.


The Exhausted Doctrine, Letitia Ness Jan 2001

The Exhausted Doctrine, Letitia Ness

American Indian Law Review

No abstract provided.


The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock Jan 2001

The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock

Faculty Scholarship

No abstract provided.


Further Thoughts, Erwin Chemerinsky Jan 2001

Further Thoughts, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.


Getting Beyond Formalism In Constitutional Law: Constitutional Theory Matters, Erwin Chemerinsky Jan 2001

Getting Beyond Formalism In Constitutional Law: Constitutional Theory Matters, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.


Replies To Professor Chemerinsky, David W. Levy, Harry F. Tepker Jr., Arthur G. Lefrancois, Kevin W. Saunders, Michael A. Scaperlanda, Katheleen R. Guzman, Lindsay G. Robertson Jan 2001

Replies To Professor Chemerinsky, David W. Levy, Harry F. Tepker Jr., Arthur G. Lefrancois, Kevin W. Saunders, Michael A. Scaperlanda, Katheleen R. Guzman, Lindsay G. Robertson

Oklahoma Law Review

No abstract provided.


Certiorari And The Supreme Court Agenda: An Empirical Analysis, Kevin H. Smith Jan 2001

Certiorari And The Supreme Court Agenda: An Empirical Analysis, Kevin H. Smith

Oklahoma Law Review

No abstract provided.


Election Disputes And The Constitutional Right To Vote, Joseph W. Little Jan 2001

Election Disputes And The Constitutional Right To Vote, Joseph W. Little

UF Law Faculty Publications

This commentary is an enlargement of a talk delivered at the annual conference of the Socio-Legal Studies Association (United Kingdom) held in Bristol, England, in April 2001. The purpose was to raise questions about where the "right-to-vote" comes from in the Florida and U.S. Constitutions and whether the constitutional right-to-vote possesses useful legal force in the judicial resolution of a closely-contested election. The Gore-Bush Florida election controversy was the stimulus.

Among the subsidiary questions are: What should a written constitution for a democratic government say about the right to vote? And, how, if at all, should constitutional litigation play a …