Law Commons^™

Minor Courts, Major Questions, Michael Coenen, Seth Davis

Vanderbilt Law Review

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency's controversial interpretation of a key provision of a regulatory statute. Lower courts now apply "Chevron deference" as a matter of course, upholding agencies' reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency's answer to a statutory question, citing the "deep economic and political significance" of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called "major questions exception" …

Reading Remedially: What Does "King V. Burwell" Teach Us About Modern Statutory Interpretation, And Can It Help Solve The Problems Of Cercla § 113(H)?, Benjamin Raker

Vanderbilt Law Review

In the latter half of the twentieth century, Congress drafted a law to solve a problem. As decades passed, that problem became increasingly complex. In the new millennium, Congress became increasingly polarized, and increasingly unproductive. In the face of that inaction, the executive branch decided to rely on a provision of that earlier law to address a modern facet of that earlier problem. Or litigants decided to ask a court to rely on a provision of that earlier law to address a modern facet of that earlier problem. The Congress that drafted the law might not have understood this modern …

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …

Textualism's Failures: A Study Of Overruled Bankruptcy Decisions, Daniel J. Bussel

Vanderbilt Law Review

Judges and legal scholars are engaged in a contentious, wide- ranging, and long-running debate over methods of statutory interpretation. Stripping the debate of some of its nuance without misrepresenting its essence, there are two camps: the "textualists" and the "pragmatists." Cass Sunstein recently argued that the question of interpretive method should be considered in light of evidence whether textualist methods work better or worse than pragmatic ones. To date, however, only limited empirical evidence has been systematically brought to bear on this question.

This Article presents new empirical evidence gleaned from twenty years of interpretation of the United States Bankruptcy …

The Legend Of "Crow Dog:" An Examination Of Jurisdiction Over Intra-Tribal Crimes Not Covered By The Major Crimes Act, James W. King

Vanderbilt Law Review

Native American tribes present unique problems to American jurisprudence and governance. Unquestionably subject to federal control on some levels, they have maintained the "inherent powers of a limited sovereignty" over internal affairs.' While both the Supreme Court and Congress have recognized this sovereignty, specific Congressional mandate can abrogate it at any time. This Note addresses the question of whether Congress has mandated federal jurisdiction over all serious crimes committed by Indians against other Indians on tribal land.

The story is long and complicated, with its beginnings in the 1883 Supreme Court case Ex parte Crow Dog, in which the Court …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholomew

Vanderbilt Law Review

If Congress wants the American citizens to have access to adequate health care, then Congress must accept its responsibility to define the scope of ERISA preemption and to enact legislation that will ensure every patient has access to that care.' Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted …

"Daigle V. Shell Oil Company" And The Bumpy Road To The Recoverability Of Medical Monitoring Expenses Under Cercla, Kristin E. Sweeney

Vanderbilt Law Review

In 1980, President Carter signed the first hazardous waste cleanup bill into law.' The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) serves as a tool for government cleanup of hazardous waste sites, but those who anxiously waited for Congress to pass a hazardous waste cleanup bill were disappointed with the final bill. The proposed bill had been broadly compromised. The lack of legislative history indicates the rushed process through which Congress passed the bill. Like a game show contest- ant who must accept or reject what is behind the door without knowing exactly what it entails, the House had …

A Reevaluation Of The Canons Of Statutory Interpretation, Joseph H. Bates

Vanderbilt Law Review

This Symposium has its genesis in the Vanderbilt Law Review's inaugural symposium, A Symposium on Statutory Construction, published in 1950.' Although the 1950 Symposium included a Foreword by Justice Felix Frankfurter and contributions by several preeminent scholars in the field, Karl Llewellyn's clumsily titled but succinctly written Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed has eclipsed the Symposium which brought it to light and has persevered as a highly influential, if not definitive, critique of the canons of statutory construction.

Llewelyn's article, in general, attacks legal formalism and …

The Costs Of Incoherence: A Comment On Plain Meaning, West Virginia University Hospitals, Inc. V. Casey, And Due Process Of Statutory Interpretation, T. Alexander Aleinikoff, Theodore M. Shaw

Vanderbilt Law Review

Karl Llewellyn's classic article on the canons of statutory construction, which we rightly celebrate in this Symposium, is too clever by half. To the reader untutored in the scholarly literature on statutory interpretation, the "thrust but parry" pairing of the canons is a delightful demonstration of how legal argument is structured in a way guaranteed to maintain discretion in the judiciary and to keep lawyers in business. No case involving a statute is clear cut because the canons can lend support to either side. This means that no lawyer is without an argument, and a judge is free to do …

Coalition Formation And The Presumption Of Reviewability: A Response To Rodriguez, Robert K. Rasmussen

Vanderbilt Law Review

Professor Dan Rodriguez's paper The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences' makes several important contributions to the literature on statutory interpretation in the modern regulatory state. It provides a coherent explanation for the curious review provisions of the Administrative Procedure Act (APA), and analyzes the continuing battle over judicial review of agency action as part of a continuing dialogue among Congress, the courts, and the President. Rodriguez recognizes that those who study statutory interpretation must take account of both the existence of administrative agencies and the fact that interpretive practices have the potential to affect …

The Practice And Problems Of Plain Meaning: A Response To Aleinikoff And Shaw, Frederick Schauer

Vanderbilt Law Review

The attention so many of the participants in this Symposium have paid to my thoughts about the role of plain meaning in statutory interpretation' is both gratifying and surprising. Among those scholars finding my ideas worthy of note are Professors Aleinikoff and Shaw, and my aim is both to comment on their contribution here and to respond more generally to what others have said about my views on the role of plain meaning. By continuing the discussion I hope to clarify some of the claims I have made about plain meaning, and in doing so to foster a better appreciation …

The Place Of Procedural Control In Determining Who May Sue Or Be Sued: Lessons In Statutory Interpretation From Civil Rico And Sedima, Douglas E. Abrams

Vanderbilt Law Review

The dust has begun to settle. After dozens of decisions that split the lower courts into insular camps, a sharply divided Supreme Court has decided Sedima, S.P.R.L. v. Imrex Co. Over four dissents, the Court held that in creating the private civil cause of action under the Racketeer Influenced and Corrupt Organizations Act (RICO), Congress did not limit the plaintiff class to persons who allege "racketeering injury." The five Justice majority also held that Congress did not limit the defendant class to persons previously convicted under RICO's criminal provision or the predicate acts that establish the RICO violation. The Court's …

Book Reviews, Stephen L. Wasby, Herbert A. Johnson

Vanderbilt Law Review

The Courts and Social Policy Author: Donald L. Horowitz

Reviewed by Stephen L. Wasby

Donald Horowitz's The Courts and Social Policy is a serious effort to deal with the question of judicial capacity. Horowitz talks first of the expansion of judicial responsibility, which he thinks is a departure from the traditional exercise of the judicial function, and then explores the sources of this growth, particularly expansive statutory interpretation. He believes that courts do not do well at interpreting the mixes of statutes, regulations, and local arrangements with which they are faced more and more frequently. "Griggs v. Duke Power Co.," …

Statutory Interpretation, Henry N. Williams

Vanderbilt Law Review

The Supreme Court of Tennessee reconsidered several problems in the field of Statutory Interpretation during the Survey period, but its decisions largely followed principles already established in Tennessee and other jurisdictions.

Constitutional Requirements

Certain problems in the field of legislation arise in Tennessee by reason of state constitutional provisions. The Court is committed to the position of interpreting these provisions more or less irrespective of the construction of comparable provisions in other state constitutions.'

The Constitution of the State of Tennessee provides: "No bill shall become a law, which embraces more than one subject; that subject to be expressed in …

Cooperative Action For Improved Statutory Interpretation, Frank E. Horack Jr.

Vanderbilt Law Review

During the past quarter century there has been a constant acceleration in legal periodical comment concerning statutory construction. Judges, practicing attorneys and law professors all have echoed basic dissatisfaction with the operation and application of the rules of statutory interpretation. Some would return to the "safe old ground" of literal interpretation; others would find relief in an expanded use of extrinsic aids; all find the process in a state of confusion and disintegration.