Law Commons^™

Democracy, Chevron Deference, And Major Questions Anti-Deference, Richard W. Murphy

Georgia Law Review

In 1984, the Supreme Court in its Chevron opinion invoked democratic values to help justify holding that courts should defer to an agency’s reasonable construction of a statute that it administers. In 2022, in West Virginia v. EPA, the Court invoked democratic values to help justify the major questions doctrine (MQD), which requires clear congressional authorization for agency claims of major regulatory power. Democracy, it seems, requires deference and anti-deference for agency statutory interpretations.

Or maybe not. This Article submits that the democracy talk of Chevron and West Virginia is implausible, misleading, and may have caused the law to evolve …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron, And More, Jack M. Beermann

William & Mary Law Review

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules, and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Are They All Textualists Now?, Austin Peters

Northwestern University Law Review

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

Liu And The New Sec Disgorgement Statute, Andrew N. Vollmer

William & Mary Business Law Review

In early 2021, Congress enacted a new statute for enforcement cases brought by the Securities and Exchange Commission. The new statute resolved important questions about the availability of disgorgement as a remedy in SEC enforcement cases, but it created other questions. The purpose of this Article is to discuss one interpretive issue that is already arising in the federal courts of appeals.

That interpretive issue is whether “disgorgement” as authorized by the new statute must abide by equitable limitations the Supreme Court imposed on disgorgement relief in SEC cases in Liu v. SEC, 140 S. Ct. 1936 (2020). The …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

William & Mary Law Review Online

This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue: agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. …

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …

The Antitrust Text, Herbert J. Hovenkamp

Indiana Law Journal

The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the …

Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak

William & Mary Bill of Rights Journal

Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of …

Temporary Nuclear Waste Siting Is A Major Problem But Not A Major Question, Dylan Cohen

Michigan Journal of Environmental & Administrative Law

Mitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help.

The Nagging In Our Ears And Original Public Meaning, Perry Dane

Marquette Law Review

The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views— theories of “original public meaning”—that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.

Statutory Interpretation And Agency Disgorgement Power, Caprice Roberts

St. John's Law Review

(Excerpt)

In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival.

What happens when obstacles foreclose claims and threaten to leave parties without …

Doctrinal Destruction And Chevron's Extinction Debt, James Ming Chen

Florida State University Law Review

Chevron, the landmark Supreme Court case urging judicial deference to reasonable agency interpretations of vague or ambiguous statutes, has dominated federal administrative law since 1984. The sudden rise of the major questions doctrine, however, has destroyed Chevron’s jurisprudential habitat. Conservation biology suggests that habitat destruction is most devastating to dominant species, often imposing a biological “debt” that must be repaid through extinction. As with biology, so with law: “Major questions” having displaced agency deference, Chevron is doomed.

Revisiting The Fried Chicken Recipe, Zachary B. Pohlman

Notre Dame Law Review Reflection

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth-century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Notre Dame Law Review

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Unheralded And Transformative: The Test For Major Questions After West Virginia, Natasha Brunstein, Donald L. R. Goodson

William & Mary Environmental Law and Policy Review

Before the Supreme Court’s landmark decision in West Virginia v. EPA, the “major questions doctrine” was little more than a handful of cases that shared a few overlapping similarities. Although the Court explained in West Virginia that these “extraordinary” cases were all ones in which an agency had asserted “highly consequential power beyond what Congress could reasonably be understood to have granted,” the Court did not apply a consistent analysis across these earlier precedents. In other words, the doctrine lacked a framework to guide lower courts and litigants.

To our knowledge, no article written since West Virginia has explored …

Congressional Rules Of Interpretation, Jarrod Shobe

William & Mary Law Review

Many scholars argue that Congress should adopt federal rules of statutory interpretation to guide judicial interpretation. This Article uses a novel dataset to show that Congress has long used enacted rules of interpretation and has increasingly done so in recent decades. However, it has chosen to do so on a statute-by-statute basis in a way that has gone mostly unnoticed by scholars and judges. We developed a dataset by using computer code to search the U.S. Code dating back to 1946 for specific phrases indicating a rule of interpretation, then manually checked and classified each rule. These rules not only …

Standing On Its Own Shoulders: The Supreme Court's Statutory Interpretation Of The Federal Arbitration Act, Kristen M. Blankley

Akron Law Review

Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (FAA), enacted in 1925. I analyzed 114 separate Supreme Court arbitration opinions, coding for fourteen different tools of statutory interpretation. This article presents the results of that analysis. The most striking finding from this study is the extraordinarily insular nature of the FAA jurisprudence compared to other scholars’ studies in their respective areas of the law. This nature can be determined statistically from the Supreme Court’s …

Allocation Of Property Appreciation: A Statutory Approach To The Judicial Dialectic, Lawrence Ponoroff

William & Mary Business Law Review

Many, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of …

Medical Necessity Of Residential Treatment For Anorexia: Can Parity Be Achieved?, Abbey Derechin

Northwestern Journal of Law & Social Policy

This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted …

Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson

Pepperdine Law Review

Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes. In 2020, the Environmental Protection Network, …

How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs

Touro Law Review

No abstract provided.

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …

Overcoming Text In An Age Of Textualism: A Practitioner's Guide To Arguing Cases Of Statutory Interpretation, Robert J. Gregory

Akron Law Review

How do I construct an argument, consistent with textual primacy, that achieves my desired result?" This Article attempts to provide the practitioner with an answer to this question. First, the Article describes the historic movement from purpose to text in the interpretation of statutes. In doing so, the Article notes a critical feature of textualism as currently configured - that it permits some flexibility (more than many people realize) in the interpretation of statutes. The Article next discusses the impact of the textual movement on the process of arguing cases of statutory interpretation. In particular, the Article sets forth three …

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

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 …

Finding Original Public Meaning, James Macleod

Georgia Law Review

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute’s bar on discrimination “because of sex”—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists’ …

Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg

University of Michigan Journal of Law Reform

This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there …

Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley

University of Michigan Journal of Law Reform

Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …

Are Digital Services Taxes Imposed By Other Countries Creditable Under Irc Section 903? Yes. But, What If The Opposite Is True?, Charles Edward Andrew Lincoln Iv

Touro Law Review

No abstract provided.

The Case Against Prosecuting Refugees, Evan J. Criddle

Northwestern University Law Review

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …