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Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson
Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson
Pepperdine Law Review
Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes. In 2020, the Environmental Protection Network, …
Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus
Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus
Pepperdine Law Review
There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even as academic and …
Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker
Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker
Pepperdine Law Review
In our contribution to this symposium on King v. Burwell, we explore two aspects of the Chief Justice’s opinion where it is hard to ignore the fingerprints of a tax lawyer. First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as interpreter with an approach that tracks tax law’s substance-over-form doctrine. Second, as to King’s sweeping administrative law holding, the Chief crafts a new major questions doctrine that could significantly cut back on federal agency lawmaking authority. Yet he seems to develop this doctrine against the backdrop of tax exceptionalism, and thus this development may have …