Law Commons^™

The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Y. Levin

Scholarly Works

What happens when kids and their parents interpret laws like lawyers and judges? Where and why does interpretation go off the rails?

Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges - father, babysitter, grandma (a liberal jurist, of course), etc. - who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to …

Chevron'S Two Steps, Kenneth A. Bamberger, Peter L. Strauss

Faculty Scholarship

The framework for judicial review of administrative interpretations of regulatory statutes set forth in the landmark Chevron U.S.A. v. Natural Resources Defense Council decision prescribes two analytic inquiries, and for good reason. The familiar two-step analysis is best understood as a framework for allocating interpretive authority in the administrative state; it separates questions of statutory implementation assigned to independent judicial judgment (Step One) from questions regarding which the courts role is limited to oversight of agency decisionmaking (Step Two).

The boundary between a reviewing court's decision and oversight roles rests squarely on the question of statutory ambiguity. For while courts, …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Which Is To Be Master, The Judiciary Or The Legislature? When Statutory Directives Violate Separation Of Powers, Linda Jellum

Articles

Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation. Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after …

Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. …

Supreme Court As Interstitial Actor: Justice Ginsburg's Eclectic Approach To Statutory Interpretation Symposium: The Jurisprudence Of Justice Ruth Bader Ginsberg: A Discussion Of Fifteen Years On The U.S. Supreme Court, James J. Brudney

Faculty Scholarship

The Supreme Court is in the midst of an extended debate regarding the proper approach to construing federal statutes. A number of Justices have engaged in heated dialogue addressing the pros and cons of textualism or intentionalism, as well as the virtues and limitations of Chevron deference. Although Justice Ginsburg has not participated in these judicial exchanges, she has adopted her own approach to the challenge of interpreting federal statutes. This Article explores Ginsburg’s approach by focusing on four opinions that construe federal criminal laws and three that interpret labor relations and anti-discrimination laws. The Article’s central thesis is that …

The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Distlear

Faculty Scholarship

Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on …

Tax Shelters And Statutory Interpretation: A Much Needed Purposive Approach, Shannon Weeks Mccormack

Articles

Few are unaware that the Tax Code and Regulations provide a detailed, complex (and lengthy) set of rules. It is hardly surprising (or new) that taxpayers attempt to avoid these rules to lower their taxes. Courts and lawmakers have long grappled to identify abusive transactions and strip taxpayers of the associated tax savings. The transactions have, however, changed dramatically over the last decade making the task much more challenging. The rapid proliferation of aggressive and diverse tax shelters has created what many refer to as a tax shelter war. In general, tax shelters refer to transactions carefully designed to fit …

Process-Based Preemption, Bradford R. Clark

GW Law Faculty Publications & Other Works

The question of preemption arises because the Constitution establishes a federal system with two governments (one federal and one state) that have overlapping power to regulate the same matters involving the same parties in the same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose the Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, the Clause actually incorporates several important political and procedural safeguards designed to preserve the proper balance between the governance prerogatives of the federal government and the states. It does this …

Shadow Precedents And The Separation Of Powers: Statutory Interpretation Of Congressional Overrides, Deborah Widiss

Articles by Maurer Faculty

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the "check" on judicial power provided by overrides is not as robust as is typically assumed. One might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Overrides thus raise unique, and previously largely ignored, questions of statutory interpretation. Using …