Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Michigan Law School (135)
- Maurer School of Law: Indiana University (24)
- Selected Works (17)
- Georgetown University Law Center (13)
- Fordham Law School (11)
-
- St. John's University School of Law (10)
- SelectedWorks (7)
- University of Colorado Law School (7)
- University of Pennsylvania Carey Law School (7)
- Penn State Law (5)
- University of Kentucky (5)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (5)
- Cornell University Law School (4)
- University of Georgia School of Law (4)
- BLR (3)
- Northwestern Pritzker School of Law (3)
- Notre Dame Law School (3)
- Pepperdine University (3)
- Schulich School of Law, Dalhousie University (3)
- UIdaho Law (3)
- University of Arkansas at Little Rock William H. Bowen School of Law (3)
- University of Massachusetts School of Law (3)
- Pace University (2)
- Texas A&M University School of Law (2)
- University of Baltimore Law (2)
- University of Missouri School of Law (2)
- University of Pittsburgh School of Law (2)
- Washington and Lee University School of Law (2)
- Brigham Young University Law School (1)
- Chicago-Kent College of Law (1)
- Publication Year
- Publication
-
- Michigan Law Review (60)
- Articles (34)
- University of Michigan Journal of Law Reform (24)
- Articles by Maurer Faculty (21)
- Faculty Scholarship (14)
-
- Georgetown Law Faculty Publications and Other Works (13)
- Faculty Publications (12)
- All Faculty Scholarship (9)
- Journal Articles (7)
- Publications (7)
- Scholarly Works (7)
- Michigan Journal of Environmental & Administrative Law (6)
- Michigan Law Review First Impressions (6)
- Books (4)
- Stephen F Ross (4)
- Cornell Law Faculty Publications (3)
- Dalhousie Law Journal (3)
- ExpressO (3)
- Indiana Law Journal (3)
- Kentucky Law Journal (3)
- Michigan Journal of Race and Law (3)
- Northwestern University Law Review (3)
- Bertrall L Ross (2)
- Brian Christopher Jones (2)
- Christopher J. Walker (2)
- Elisabeth Haub School of Law Faculty Publications (2)
- Law Faculty Scholarly Articles (2)
- Michigan Journal of International Law (2)
- Notre Dame Law Review (2)
- Pepperdine Law Review (2)
- Publication Type
- File Type
Articles 91 - 120 of 306
Full-Text Articles in Law
Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost
Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost
Articles
The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …
A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele
A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele
Faculty Publications
In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Journal Articles
Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …
The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos
The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos
Articles
According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Journal Articles
There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …
King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda
King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda
Ronald D. Rotunda
The Patient Protection and Affordable Care Act (ACA) is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways …
Are Housekeepers Like Judges?, Stephen P. Garvey
Are Housekeepers Like Judges?, Stephen P. Garvey
Stephen P. Garvey
Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute …
Introduction To The Micro-‐‑Symposium On Scalia & Garner's “Reading Law”:The Textualist Technician, Karen Petroski
Introduction To The Micro-‐‑Symposium On Scalia & Garner's “Reading Law”:The Textualist Technician, Karen Petroski
All Faculty Scholarship
Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, …
Protecting Whistleblower Protections In The Dodd-Frank Act, Samuel C. Leifer
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 …
Calling On U.S. Courts To Adopt Canada's Unified Approach To Statutory Interpretation, Amir Pichhadze
Calling On U.S. Courts To Adopt Canada's Unified Approach To Statutory Interpretation, Amir Pichhadze
The Journal of Appellate Practice and Process
No abstract provided.
Benevolent Maleficence:How A Well-Intentioned Legislature And A Deferential Court Combined To Stunt The Development Of Massachusetts Product Liability Law, Philip E. Cleary
Benevolent Maleficence:How A Well-Intentioned Legislature And A Deferential Court Combined To Stunt The Development Of Massachusetts Product Liability Law, Philip E. Cleary
University of Massachusetts Law Review
Massachusetts product liability law is unusual. Unlike most states, Massachusetts does not recognize strict tort liability in the product area. Rather, "strict product liability" is limited to breaches of warranty under Article 2 of the Uniform Commercial Code. the Massachusetts Legislature amended Article 2 in several ways to provide a "strict liability" remedy that is, in the words of the Massachusetts Supreme Judicial Court, "congruent in nearly all respects with the principles" of strict tort liability. The court has construed the amendments to the UCC as precluding the adoption of strict tort liability in Massachusetts. In most ways, Massachusetts product …
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Articles
The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …
The Search For Legislative Intent, Larry Alexander
The Search For Legislative Intent, Larry Alexander
Faculty Scholarship
No abstract provided.
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers
University of Michigan Journal of Law Reform
This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …
Missing The Forest For The Trees: Why Supplemental Needs Trusts Should Be Exempt From Medicaid Determinations, Jeffrey R. Grimyser
Missing The Forest For The Trees: Why Supplemental Needs Trusts Should Be Exempt From Medicaid Determinations, Jeffrey R. Grimyser
Chicago-Kent Law Review
Supplemental needs trusts are trusts designed to assist individuals with disabilities by paying for services and items that Medicaid will not pay for. Federal law, however, is unclear as to whether using one of these trusts automatically disqualifies someone from receiving Medicaid, thereby causing the circuit courts to split on their interpretation. Some circuits have held that the Medicaid statute allows states to enact laws prohibiting the use of these trusts while receiving Medicaid benefits based on the federal law’s statutory language. While other circuits have ruled that individuals can simultaneously receive Medicaid benefits and use supplemental needs trusts given …
Overrides: The Super-Study, Victoria Nourse
Overrides: The Super-Study, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters …
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Georgetown Law Faculty Publications and Other Works
Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.
Elementary Statutory Interpretation: Rethinking Legislative Intent And History, Victoria Nourse
Elementary Statutory Interpretation: Rethinking Legislative Intent And History, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures. Once one …
The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane
The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane
Articles
Of all Robert Bork’s many important contributions to antitrust law, none was more significant than his identification of economic efficiency, disguised as consumer welfare, as the sole normative objective of U.S. antitrust law. The Supreme Court relied primarily on Bork’s argument that Congress intended the Sherman Act to advance consumer welfare in making its landmark statement in Reiter v. Sonotone that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’” This singular normative vision proved foundational to the reorientation of antitrust law away from an interventionist, populist, Brandeisian, and vaguely Jeffersonian conception of antitrust law as a constraint on …
The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan
The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan
Donald J. Kochan
Preemption And Textualism, Daniel J. Meltzer
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 …
Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley
Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley
Jill M. Fraley
None available.
Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley
Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley
Scholarly Articles
None available.
Congressional Silence And The Statutory Interpretation Game, Paul Stancil
Congressional Silence And The Statutory Interpretation Game, Paul Stancil
Faculty Scholarship
This Article explores the circumstances under which the federal legislative apparatus may be unable to respond to a politically objectionable statutory interpretation from the Supreme Court. The Article builds upon existing economic models of statutory interpretation, for the first time incorporating transaction costs into the analysis. The Article concludes by identifying recent real-world disputes in which transaction costs constrained Congress and the President from overriding the Court.
Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz
Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz
Georgetown Law Faculty Publications and Other Works
The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited."S It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone--or a foreign government alone--can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase …
Reconsidering Statutory Interpretive Divergence Between Elected And Appointed Judges, Bertrall L. Ross
Reconsidering Statutory Interpretive Divergence Between Elected And Appointed Judges, Bertrall L. Ross
Bertrall L Ross
No abstract provided.
Book Review - 'The Elements Of Legislation' By Neil Duxbury, Brian Christopher Jones
Book Review - 'The Elements Of Legislation' By Neil Duxbury, Brian Christopher Jones
Brian Christopher Jones
No abstract provided.
The Canon At The Water's Edge, Thomas B. Bennett
The Canon At The Water's Edge, Thomas B. Bennett
Faculty Publications
What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress's most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes …
When Good Enough Is Not Good Enough, Karl Stampfl
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
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 …