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Full-Text Articles in Law
Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans
Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans
Faculty Publications
Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …
The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett
The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett
Faculty Publications
This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint at, what came to …