Law Commons^™

Four Futures Of Chevron Deference, Daniel E. Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos

Faculty Scholarship

Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …

Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill

Faculty Scholarship

The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …

Shadow Amendments, William J. Aceves

Faculty Scholarship

The Supreme Court’s jurisprudence surrounding the Alien Tort Statute (“ATS”) reflects the phenomenon of shadow amendments, an inevitable outcome of statutory construction. These judicial interpretations altered the ATS and narrowed its reach. Through repeated shadow amendments, the Court has moved the ATS far beyond its original thirty-three word configuration and understanding. These shadow amendments reflect an aggressive form of statutory construction, an ironic description for a Court that has long championed deference to Congress and fealty to legislative text. This dynamic is evident in Nestlé USA, Inc. v. Doe, the Court’s most recent ATS decision. But shadow amendments are …

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

Tribute To R. Kent Greenawalt: A Common-Law Thinker In A Text Driven Age, Peter L. Strauss

Faculty Scholarship

Kent Greenawalt was my colleague and friend for half a century. Over those years, we shared responsibility both for students at the beginning of their legal studies and for candidates for the doctoral degree. The course in Legal Methods, while we each taught it, was an intensive three-week, thirty-nine class hour introduction to legal studies that divided its attention between common law case analysis and statutory interpretation; Kent’s nuanced understanding of both profoundly shaped my approach to each. In the doctoral program, he offered a graduate seminar on jurisprudence; my responsibility was for a seminar on legal education. Sharing these …

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Democracy And Disenchantment, Ashraf Ahmed

Faculty Scholarship

During the latter half of the Trump presidency, as it became increasingly clear that the Supreme Court would remain solidly conservative for the foreseeable future, Samuel Moyn and Ryan Doerfler declared war. In popular and scholarly venues, they have steadily built a case for curtailing the power of the nation’s highest court. Their arguments have been both pragmatic and principled. They have underlined, for instance, the risks the Roberts Court poses to progressive goals such as addressing climate change1 and granting student debt relief. More broadly, they object to a “supra-democratic court exercising its current, expansive legislative veto.” For Doerfler …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

Fun With Reverse Ejusdem Generis, Jay D. Wexler

Faculty Scholarship

In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. The canon of ejusdem generis has a long and storied history in the law, has been used by judges in countless cases, and has been the subject of a large body of scholarly …

Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill

Faculty Scholarship

It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. They were cousins. Augustus Hand was a few years older than Learned Hand but was appointed to the …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

Toward A Federal Jurisprudence Of Trade Secret Law, Sharon Sandeen, Christopher B. Seaman

Faculty Scholarship

The May 2016 enactment of the Defend Trade Secrets Act of 2016 (DTSA), which created a new federal civil cause of action for trade secret misappropriation, raises a host of issues that federal courts will have to consider under their original subject matter jurisdiction, rather than applying state law through the courts’ diversity jurisdiction. This means that for the first time, an extensive body of federal jurisprudence will be developed to govern the civil protection and enforcement of trade secrets in the United States. In addition, due to the DTSA’s changes to the existing federal criminal law governing trade secrets, …

Chevron Is A Rorschach Test Ink Blot, Jack M. Beermann

Faculty Scholarship

I agree with Alan Morrison that, in some circumstances, courts should defer to legal determinations made by administrative agencies. I disagree, however, with Alan’s view that Chevron provides a suitable framework for such deference. It really boils down to my disagreement with the first sentence of Alan’s article: “In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them.”1 In fact, the Supreme Court adopted nothing in Chevron related to …

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Body Of Preemption: Health Law Traditions And The Presumption Against Preemption, Elizabeth Mccuskey

Faculty Scholarship

Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress's intent by applying substantive canons of statutory interpretation, including presumptions against preemption.

This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the "tradition presumption." Unlike the general presumption against preemption on federalism grounds, courts base this …

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that …

Formalism And Deference In Administration Law, Kristen E. Hickman, Jide O. Nzelibe, Thomas W. Merrill, Philip A. Hamburger, Jennifer Walker Elrod

Faculty Scholarship

The topic for discussion is formalism and deference in administrative law. As we know, the landmark case of Chevron v. Natural Resources Defense Council has changed the face of modern administrative law. The panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies’ jurisdictional mandates. Should the federal courts defer, or should they not defer in this context? We need guidance. Justices Scalia and Thomas recently differed from Chief Justice Roberts and Justices Kennedy and Alito on these issues. Who is right, and why? Does the answer …

The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff

Faculty Scholarship

In these two short essays, I examine the somewhat bizarre — and potentially harmful — ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance …

Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt

Faculty Scholarship

At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."

The result has been widely approved by those who favor an extensive scope for religious liberty and …

Judging Statutes, Peter L. Strauss

Faculty Scholarship

Chief Judge Robert Katzmann has written a compelling short book about statutory interpretation. It could set the framework for a two- or three-hour legislation class, supplemented by cases and other readings of the instructor's choosing. Or it might more simply be used as an independent reading assignment as law school begins, to apprise 21st-century law students just how important the interpretation of statutes will prove to be in the profession they are entering, and how unsettled are the judiciary's means of dealing with them. It should be required reading for all who teach in the field.

The Search For Legislative Intent, Larry Alexander

Faculty Scholarship

No abstract provided.

Failing Expectations: Fourth Amendment Doctrine In The Era Of Total Surveillance, Olivier Sylvain

Faculty Scholarship

Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.This Essay argues that the reasonable …

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

Faculty Scholarship

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 …

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

Faculty Scholarship

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 …

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.

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

Faculty Scholarship

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 …

Distrust And Clarify: Appreciating Congressional Overrides, James J. Brudney

Faculty Scholarship

Deborah Widiss continues to make important contributions in an area of statutory interpretation that has been largely neglected: the consequences of congressional overrides. Professor Widiss previously demonstrated how the Supreme Court and lower courts often confine the reach of statutes that purposefully override prior court decisions, thereby reviving aspects of the overridden judicial interpretations as ―shadow precedents.‖ In Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, Professor Widiss addresses the Supreme Court‘s further expansion of judicial power in the aftermath of congressional disapproval. Faced with the override of its textual interpretation in one employment discrimination statute, the Court inferred …