Law Commons^™

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …

Authority With The Force Of Law: Statutory Interpretation As Policymaking In Gonzales V. Oregon, Alfred J. Ludwig

Missouri Law Review

The Oregon Death with Dignity Act was enacted in 1994 by the State of Oregon to allow physicians to aid terminally ill patients who wished to end their lives in a controlled manner. In 2001, Attorney General John Ashcroft issued an Interpretive Rule stating that prescribing a controlled substance for the purpose of physician-assisted suicide would not qualify as a requisite "legitimate medical purpose" under the federal Controlled Substances Act, and that any physician who prescribed a controlled substance for the purpose of ending a patient's life faced deregistration. In Gonzales v. Oregon, the Supreme Court of the United States …

Commenting On The Views Of Roger Pilon, Arthur R. Landever

Law Faculty Presentations and Testimony

Professor Landever comments upon the views of Roger Pilon of the Cato Institute on interpretation of the U.S. Constitution.

Re Izaak Walton Killam Health Centre And Nsgeu (P-05121), Innis Christie

Innis Christie Collection

This is a union policy grievance regarding the Employer's approach to the compensation of employees for time lost on storm days. The Employer was compensating only if the time lost was for less than two hours. The Union believed that the Employer should pay for the first two hours. The Union seeks full redress, including retroactive compensation. The Employer agreed to the requested remedy if the Grievance is successful.

The grievance fails. The Union could not prove its interpretation of the relevant clauses of the Collective Agreement.

Canons, The Plenary Power Doctrine And Immigration Law, Brian G. Slocum

ExpressO

There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has “plenary power” over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction in an aggressive fashion to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively focused on the plenary power doctrine. They have either ignored the important role that canons have played in immigration law or have viewed canons as serving only a temporary and marginally legitimate role as substitutes for the lack of constitutional rights …

Contra Proferentem: The Allure Of Ambiguous Boilerplate, Michelle Boardman

Michelle Boardman

No abstract provided.

Contra Proferentem: The Allure Of Ambiguous Boilerplate, Michelle E. Boardman

Michigan Law Review

Bad boilerplate can shake one' s faith in evolution; not only does it not die away, it multiplies. The puzzle is why. Much of boilerplate is ambiguous or incomprehensible. This alienates consumers and is i ncreasingly punished by courts construing the language against the drafter. There must, therefore, be some hidden allure to ambiguous boilerplate. The popular theory is trickery: drafters lure consumers in with promising language that comes to nothing in court. But this trick would require consumers to do three things they do not do-read the language, understand it, and take comfort in it. There is a hidden …

Contract As Statute, Stephen J. Choi, G. Mitu Gulati

Michigan Law Review

The traditional model of contract interpretation focuses on the "meeting of the minds." Parties agree on how to structure their respective obligations and rights and then specify their agreement in a written document. Gaps and ambiguities are inevitable. But where contract language exists for the point in contention and a dispute arises as to the meaning of this language, courts attempt to divine what the parties intended. Among the justifications for deferring to the intent of the parties is the assumption that parties know what is best for themselves. Deference also arguably furthers autonomy values. Not all contracts and contract …

Presidential Signing Statements: How To Find Them, How To Use Them, And What They Might, Steve Sheppard

Steve Sheppard

Lawyers should be cautious when seeking guidance in statutory interpretation from presidential signing statements. Reliance on signing statements as a source of statutory interpretation is controversial, as deference to the president’s interpretation, rather than interpretations of the legislature or judiciary, can lead to unlimited executive power. Signing statements can be retrieved from government resources or private vendors, and they are useful for advising clients how to interact with government agencies. In effect, signing statements act as orders from the president, which agencies under the executive chain of command follow.

Signing statements are also useful as sources of statutory interpretation when …

Shifting Science, Considered Costs, And Static Statutes: The Interpretation Of Expansive Environmental Legislation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Congress often passes expansive legislation, frequently environmental and public health regulatory statutes, where both the definition of those items being regulated and the mandate have significant breadth. How should these provisions be construed? While it is difficult to establish a model which determines whether to broadly or narrowly construe an expansive statutory provision, factors that impact this choice include the existence of express limitations on the mandate, understandings of congressional intent, the need to avoid regulation that might do more harm than good, the nature of the regulated item, and intervening circumstances such as new understandings in law, policy, or …

The Court Of Appeals For The Fifth Circuit 2004-2005 Disposition Of Insurance Decisions: A Survey And Statistical Review, Willy E. Rice

Faculty Articles

he Court of Appeals for the Fifth Circuit decided twenty-four insurance-related cases between June 2004 and April 2005. Those cases originated in nine federal district courts. Unlike its 2002-2004 rulings, the Court of Appeals did not decide any exceptionally novel or complex substantive or procedural questions. In fact, the Fifth Circuit issued four extremely short per curiam decisions, and in two other cases, presented brief analyses and dispositions of statutes-of-limitations and exhaustion-of-administrative-remedies questions under Louisiana’s law. Although the remaining eighteen cases present a diverse body of law and legal issues, only the more novel and highly questionable Fifth Circuit insurance …

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

Articles

This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this …

If The Train Should Jump The Track ...: Divergent Interpretations Of State And Federal Employment Discrimination Statutes, Alex B. Long

Scholarly Works

As interpretational issues surrounding federal employment discrimination statutes have become more complex and controversial, there have arisen more opportunities for parallel state anti-discrimination law to jump the track and take alternative courses. Not surprisingly, when dealing with their own parallel state statutes, a number of state appellate courts in recent years have chosen this course of action. Even where state and federal employment discrimination have not yet taken different paths, the potential for such divergent interpretations of state and federal anti-discrimination law has increased in recent years to the point where we may enter an era not unlike that of …

A Return To Eyes On The Prize: Litigating Under The Restored New York City Human Rights Law, Craig Gurian

Fordham Urban Law Journal

The recent enactment of the Local Civil Rights Restoration Act ("Restoration Act") reflects the New York City Council's concern that the City Human Rights Law "has been construed too narrowly." The law explicitly rejects the "carbon copy" theory and seeks an independent construction from similar or identical provisions of New York state or federal statutes. The Restoration Act proceeds along two basic tracks. One track consists of a series of amendments to particular sections of the law. These amendments expand retaliation protection, raise the maximum civil penalties that can be awarded in proceeding brought administratively, protect domestic partners against all …

Pluralism And Public Legal Reason, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for …

The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin

Articles & Chapters

This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in …

The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell

Faculty Scholarship

This paper, which will appear as a chapter in the forthcoming Handbook of Law and Economics (A.M. Polinsky & S. Shavell, eds.), surveys major issues arising in the economic analysis of contract law. It begins with an introductory discussion of scope and methodology, and then addresses four topic areas that correspond to the major doctrinal divisions of the law of contracts. These areas include freedom of contract (i.e., the scope of private power to create binding obligations), formation of contracts (both the procedural mechanics of exchange, and rules that govern pre-contractual behavior), contract interpretation (what consequences follow when agreements are …