Law Commons^™

The Doctrine Of Clarifications, Pat Mcdonell

Michigan Law Review

Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts’ answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes …

Unplanned Obsolescence: Interpreting The Automatic Telephone Dialing System After The Smartphone Epoch, Walter Allison

Michigan Law Review

Technology regulations succeed or fail based upon their ability to regulate an idea. Constant innovation forces legislators to draft statutes aimed at prohibiting the idea of a device, rather than a specific device itself, because new devices with new capacities emerge every day. The Telephone Consumer Protection Act (TCPA) is a federal statute that imposes liability based on the idea of an automatic telephone dialing system (ATDS). But the statute’s definition of the device is ambiguous. The FCC struggles to coherently apply the definition to new technologies, and courts interpret the definition inconsistently. Federal circuit courts have split over these …

Resolving "Resolved": Covenants Not To Sue And The Availability Of Cercla Contribution Actions, Jacob Podell

Michigan Law Review

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—as part of its dual goals of cleaning up hazardous-waste sites and ensuring that the polluter pays for that cleanup—gives private parties two mutually exclusive causes of action: cost recovery and contribution. Contribution is available in limited circumstances, including if the party has “resolved” its liability with the government. But CERCLA does not define this operative term. Federal courts are split over how the structure of a settlement resolves liability. Several courts follow Bernstein v. Bankert, which held that any conditions precedent and nonadmissions of liability strongly suggest that a party …

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their …

High-Stakes Interpretation, Ryan D. Doerfler

Michigan Law Review

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard …

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …

Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer

Michigan Law Review

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.

This result calls into question the utility of corpus linguistics. …

Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco

Michigan Law Review

Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs …

Holding On To Clarity: Reconciling The Federal Kidnapping Statute With The Trafficking Victims Protection Act, Benjamin Reese

Michigan Law Review

In recent decades, the international community has come to recognize human trafficking as a problem of epidemic proportions. Congress responded to this global crisis in 2000 by passing the Trafficking Victims Protection Act (TVPA) and has since supplemented that comprehensive enactment. But, in light of the widespread use of psychological rather than physical coercion in trafficking cases, a long-standing split among federal courts regarding the scope of the federal kidnapping statute raises significant concerns about the United States’ efforts to combat traffickers. In particular, the broad interpretation adopted by several circuits threatens effective enforcement of statutes designed to prosecute traffickers, …

Rethinking Special Education's "Least Restrictive Environment" Requirement, Cari Carson

Michigan Law Review

The federal Individuals with Disabilities Education Act promotes the education of students with disabilities together with their nondisabled peers, requiring education in the “least restrictive environment” (“LRE”). This requirement has long been subject to competing interpretations. This Note contends that the dominant interpretation—requiring education in the least restrictive environment available—is deficient and allows students to be placed in unnecessarily restrictive settings. Drawing from child mental health law, this Note proposes an alternative LRE approach that requires education in the least restrictive environment needed and argues that this alternative approach is a better reading of the law.

Protecting Whistleblower Protections In The Dodd-Frank Act, Samuel C. Leifer

Michigan Law Review

In 2008, the United States fell into its worst economic recession in over seventy years. In response, Congress enacted the near-comprehensive Dodd–Frank Wall Street Reform and Consumer Protection Act. Section 922 of Dodd–Frank, in particular, includes specific provisions designed to incentivize and protect corporate whistleblowers. These provisions demonstrated Congress’s belief that a comprehensive and robust whistleblower protection scheme was essential to preventing many of the abuses that caused the financial crisis. Unfortunately, this section’s inconsistent language has produced conflicting decisions within the federal judiciary. In accordance with the Securities and Exchange Commission (“SEC”)’s own reading of Section 922, several district …

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

When Good Enough Is Not Good Enough, Karl Stampfl

Michigan Law Review

According to conventional wisdom, the state of statutory interpretation is not strong. Its canons of construction-noscitur a sociis, ejusdem generis, expressio unius est exclusio alterius, reddendo singula singulis, and more than a few others-are a morass of Latin into which many law students and even judges have sunk. Its practitioners are unprincipled. Its doctrines are muddied. Its victims are many. In short, the system is broken-unless, of course, it is not. In The Language of Statutes: Laws and Their Interpretation, Lawrence M. Solan slices through the rhetoric, the fighting, and the law-review-article histrionics in an attempt to show that the …

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

Rethinking Discrimination Law, Sandra F. Sperino

Michigan Law Review

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims. This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be …

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …

Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock

Michigan Law Review

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Bichel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents …

A New Approach To Section 363(F)3, Evan F. Rosen

Michigan Law Review

Section 363(f) of the Bankruptcy Code provides five circumstances in which a debtor may be permitted to sell property free of all claims and interests, outside of the ordinary course of business, and prior to plan confirmation. One of those five circumstances is contained in § 363(f)(3), which permits such a sale where the "interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property." While it is far from certain whether § 363(f)(3) requires a price "greater than the aggregate [face value] of …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Prohibiting Conduct, Not Consequences: The Limited Reach Of The Migratory Bird Treaty Act, Benjamin Means

Michigan Law Review

Dissatisfied with the protection afforded wildlife by more recent environmental laws, some environmentalists seek to reinterpret one of the oldest federal environmental laws, the Migratory Bird Treaty Act (MBTA). Long understood simply to regulate hunting, the MBTA makes it illegal to "take" or "kill" migratory birds without a permit. The MBTA imposes strict liability for a violation. A heady combination of strict liability, criminal penalty provisions, and vague language, the MBTA appeals to those seeking to control land use activity. Some environmentalists advocate an interpretation of the MBTA that, contrary to legislative intent and 80 years of enforcement practice, would …

Textualism, The Unknown Ideal?, William N. Eskridge Jr.

Michigan Law Review

In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the …

Statutory Interpretation And The Idea Of Progress, Daniel A. Farber

Michigan Law Review

A Review of William N. Eskridge, Dynamic Statutory Interpretation

Reading The Legal Process, Anthony J. Sebok

Michigan Law Review

A Review of Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in eh Making and Application of Law

Supplemental Jurisdiction Over Claims By Plaintiffs In Diversity Cases: Making Sense Of 28 U.S.C. § 1367 (B), Darren J. Gold

Michigan Law Review

This Note examines the language and legislative history of section 1367(b) and proposes a uniform test for determining the circumstances in which subsection (b) authorizes the exercise of supplemental jurisdiction. Part I of this Note explains the doctrines of pendent and ancillary jurisdiction and examines how the Supreme Court's decision in Finley v. United States called these doctrines into question. Part II examines the language and legislative history of section 1367 and concludes that the statute only prohibits the exercise of supplemental jurisdiction over claims by plaintiffs in diversity cases when doing so would permit plaintiffs to circumvent the complete …

The Single-Scheme Exception To Criminal Deportations And The Case For Chevron's Step Two, David A. Luigs

Michigan Law Review

This Note applies the two-step Chevron analysis to the single-scheme exception and argues that courts should reject the BIA's single-act test. In applying Chevron, this Note uses the narrow controversy over the proper interpretation of the single-scheme exception as a window on the larger ambiguity that plagues the Supreme Court's Chevron jurisprudence. This Note suggests an answer to a broader issue that has remained unclear under the Supreme Court's precedents: how courts should review agency interpretations at Chevron's second step.

Are Trojan Horse Union Organizers "Employees"?: A New Look At Deference To The Nlrb's Iterpretation Of Nlra Section 2(3), Jonathan D. Hacker

Michigan Law Review

This Note takes a different approach to interpreting section 2(3). Although this Note agrees that section 2(3) neither clearly includes nor clearly excludes trojan horse organizers, it also argues that the definition of employee under section 2(3) must be determined by looking to common law principles of agency. In other words, the question whether courts should defer to the Board's interpretation of section 2(3) does not turn on statutory ambiguity. Rather, courts have a continuing duty to ensure that the Board interprets employee consistently with common law agency principles. Nevertheless, the correct interpretation of employee under agency principles ultimately turns …