Law Commons^™

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Anthony J. Bellia

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds

William L. Reynolds

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Jill M. Fraley

None available.

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary …

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

Brian Christopher Jones

No abstract provided.

A Case Study In The Superiority Of The Purposive Approach To Statutory Interpretation: Bruesewitz V. Wyeth , Donald G. Gifford, William L. Reynolds, Andrew M. Murad

William L. Reynolds

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite …

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas

Michael Pappas

This article examines the deference standards that the various states apply to agency statutory interpretation and analyzes the implications for the federal Chevron doctrine. First, the article surveys state standards for reviewing agencies' statutory interpretation, finding that none of the state standards exactly follows the federal Chevron test but that state standards fall into one of four categories ranging from "strong deference" to "de novo with deference discouraged." The article then examines four particular state standards in depth, discovering that states tend to use the same methods, tools, and processes for statutory interpretation despite the different announced degrees of deference. …

Illegal Emigration: The Continuing Life Of Invalid Deportation Orders, Richard Frankel

Richard H. Frankel

Federal appeals courts overturn more than one thousand deportation orders every year. A significant number of those reversals involve non-citizens who are abroad because they have been deported as a result of losing their cases at the administrative level. Although an order overturning a deportation order ordinarily restores non-citizens to their prior status of being lawfully present in the United States, federal immigration authorities have used the fact of the non-citizen’s now-invalidated deportation to subject such non-citizens to a new and previously inapplicable set of standards that effectively prevents them from returning. Under this practice, non-citizens who seek to return …

Revitalizing Section 2, Christopher Elmendorf

Christopher S. Elmendorf

This article develops a fresh account of the meaning and constitutional function of Section 2, the Voting Rights Act’s core provision of nationwide application, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. Section 2 on my account delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 only arise when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or …

Against Constitutional Mainstreaming, Bertrall L. Ross

Bertrall L Ross

Courts interpret statutes in hard cases. Statutes are frequently ambiguous, and an enacting legislature cannot foresee all future applications of a statute. The Supreme Court in these cases often chooses statutory interpretations that privilege the values that it has emphasized in its recent constitutional jurisprudence. In doing so, the Court rejects alternative interpretations that are more consistent with the values embodied in more recently enacted statutes. This is constitutional mainstreaming—an interpretive practice that molds statutes toward the Court’s own preferred values and away from values favored by legislative majorities.

In addition to providing a novel descriptive framework for what the …

Severability Of Statutes, Tom Campbell

Tom Campbell

Courts legislate when they engage in "severability analysis", allowing part of a law to continue in force, after having struck down other parts as unconstitutional. This is flawed for the same reason that the legislative veto and the executive line-item veto are flawed. All involve creating a legislative outcome without the joint approval of both houses and the executive. The practice derives from an analogy to contract enforcement, where a court will try to preserve part of a contract when the rest is unenforceable. However, the analogy is imperfect because Congress and the state legislature remain in a position to …

Book Review - 'The Language Of Statutes' By Lawrence M. Solan, Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

Legislative Histories And The Practice Of Statutory Interpretation In Wyoming, Debora A. Person

Debora A. Person

No abstract provided.

Ip And Antitrust: Errands Into The Wilderness, Herbert Hovenkamp

Herbert Hovenkamp

IP AND ANTITRUST: ERRANDS INTO THE WILDERNESS

ABSTRACT

Antitrust and intellectual property law both seek to promote economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust began an Errand into the Wilderness in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition-furthering goals of antitrust policy. Today, patent law has begun its …

Hamdan V. Rumsfeld: The Functional Case For Foreign Affairs Deference To The Executive Branch, John C. Yoo, Julian Ku

John C Yoo

The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference. In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. …

The Other Side Of The Coin: Implications For Policy Formation In The Law Of Judicial Interpretation. Book Note: A Review Of A Matter Of Interpretation: Federal Courts And The Law By Antonin Scalia, Donald J. Kochan

Donald J. Kochan

Justice Scalia defends textualism as the only form of interpretation that should govern judicial interpretation of statutes and the Constitution. The book begins with an essay by Justice Scalia establishing the framework of his interpretive model and arguing that his model is mandated to achieve institutional legitimacy in a constitutional system of separated powers and for the protection of democracy. Comments to this essay follow from four distinguished scholars. Each comment is addressed in the final pages by a response from Justice Scalia. This Article presents an overview of Justice Scalia's argument, the arguments embodied in the comments, and discusses …