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Articles 1 - 21 of 21
Full-Text Articles in Law
Claims, Civil Actions, Congress & The Court: Limiting The Reasoning Of Cases Construing Poorly Drawn Statutes, Joan Steinman
Claims, Civil Actions, Congress & The Court: Limiting The Reasoning Of Cases Construing Poorly Drawn Statutes, Joan Steinman
Washington and Lee Law Review
No abstract provided.
Don't Get The Wrong Idea: How The Fourth Circuit Misread The Words And Spirit Of Special Education Law-And How To Fix It, Michael T. Mccarthy
Don't Get The Wrong Idea: How The Fourth Circuit Misread The Words And Spirit Of Special Education Law-And How To Fix It, Michael T. Mccarthy
Washington and Lee Law Review
No abstract provided.
John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs
John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs
Stephen E. Sachs
Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the …
Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., 550 U.S. __ (2008), David K. Kessler
Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., 550 U.S. __ (2008), David K. Kessler
David K Kessler
The Federal Arbitration Act (FAA) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court's decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …
The Problematic Nature Of Contractionist Statutory Interpretations, Brian G. Slocum
The Problematic Nature Of Contractionist Statutory Interpretations, Brian G. Slocum
Brian G. Slocum
The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging …
Hamdan V. Rumsfeld: A Legislative History Smorgasbord, John J. Miller
Hamdan V. Rumsfeld: A Legislative History Smorgasbord, John J. Miller
John J. Miller II
The Supreme Court in Hamdan v. Rumsfeld denied the government’s motion to dismiss the habeas appeal of Hamdan, bin Laden’s driver, who was being held at Guantanamo Bay. The majority, led by Justice Stevens, determined that the recently passed Detainee Treatment Act (DTA), which eliminated federal court jurisdiction to hear habeas appeals from detainees held at Guantanamo Bay, did not apply to pending cases, like Hamdan’s. This interpretation was supposedly strongly buttressed by the legislative history of the DTA. This essay outlines the arguments of the opponents and proponents of the use of legislative history, and then juxtaposes these arguments …
Returning Rico To Racketeers: Corporations Cannot Constitute An Associated-In-Fact Enterprise Under 18 U.S.C. § 1961(4), Caroline N. Mitchell, Jordan Cunningham, Mark R. Lentz
Returning Rico To Racketeers: Corporations Cannot Constitute An Associated-In-Fact Enterprise Under 18 U.S.C. § 1961(4), Caroline N. Mitchell, Jordan Cunningham, Mark R. Lentz
Fordham Journal of Corporate & Financial Law
No abstract provided.
The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji
The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji
Michigan Law Review First Impressions
The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.
Mccain’S Citizenship And Constitutional Method, Peter J. Spiro
Mccain’S Citizenship And Constitutional Method, Peter J. Spiro
Michigan Law Review First Impressions
Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.
Originalism And The Natural Born Citizen Clause, Lawrence B. Solum
Originalism And The Natural Born Citizen Clause, Lawrence B. Solum
Michigan Law Review First Impressions
The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
Searching For Chevron In Muddy Watters: The Roberts Court And Judicial Review Of Agency Regulations, Ann Graham
Searching For Chevron In Muddy Watters: The Roberts Court And Judicial Review Of Agency Regulations, Ann Graham
ann graham
SEARCHING FOR CHEVRON IN MUDDY WATTERS: THE ROBERTS COURT AND JUDICIAL REVIEW OF AGENCY REGULATIONS
Ann Graham
Abstract
In April 2007, the U.S. Supreme Court delivered its opinion in Watters v. Wachovia. The majority opinion did not invoke the classic administrative law analysis prescribed by the Two-Step Chevron Doctrine, which for more than twenty years has been the foundation of determining judicial deference to agency regulations. The Watters case presented a golden opportunity to clarify the Chevron Doctrine. Instead of taking that expected path, the Supreme Court dodged Chevron altogether – raising serious issues about why and what may be …
Why John Mccain Was A Citizen At Birth, Stephen E. Sachs
Why John Mccain Was A Citizen At Birth, Stephen E. Sachs
Stephen E. Sachs
Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a "natural born Citizen" eligible to be president.
Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring
Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring
David S. Law
Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a statute. We …
No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas
No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas
Faculty Scholarship
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. …
Why John Mccain Was A Citizen At Birth, Stephen E. Sachs
Why John Mccain Was A Citizen At Birth, Stephen E. Sachs
Michigan Law Review First Impressions
Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.
Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin
Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin
Michigan Law Review First Impressions
Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.
Friends Of The Earth, Inc. V. Epa: The Daily Plunge Into Troubled Waters, Rachel L. Stern
Friends Of The Earth, Inc. V. Epa: The Daily Plunge Into Troubled Waters, Rachel L. Stern
Villanova Environmental Law Journal
No abstract provided.
An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation, And The Chevron Doctrine In Environmental Law, Jason J. Czarnezki
An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation, And The Chevron Doctrine In Environmental Law, Jason J. Czarnezki
University of Colorado Law Review
How do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. With special attention paid to how courts implement the Chevron doctrine, this Article empirically and doctrinally analyzes environmental law cases decided in the United States Courts of Appeals over a threeyear period (2003-05) to investigate what factors, including ideological, legal, …
Interpretation, Francis J. Mootz Iii
Interpretation, Francis J. Mootz Iii
Scholarly Works
In this chapter from "Law and the Humanities: An Introduction," published by Cambridge University Press, I first survey various theoretical approaches to interpretation, including natural law, analytical legal positivism, law as communication (originalism, intentionalism, and new textualism), and the hermeneutical turn. I then discuss the role of interpretation in contract law, statutory law and constitutional law, to situate the theories in practice.
Textualism And Jurisdiction, Peter J. Smith
Textualism And Jurisdiction, Peter J. Smith
GW Law Faculty Publications & Other Works
Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress's authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress's role in crafting a jurisdictional regime last flared in full force, textualism has …
Using Ethics Codes To Reinforce Lessons Of Statutory Interpretation, Edward R. Becker
Using Ethics Codes To Reinforce Lessons Of Statutory Interpretation, Edward R. Becker
Articles
To increase my students' exposure to statutory interpretation, I assign them early in the second semester to argue a motion to disqualify counsel based on imputed disqualification under Michigan's ethics ruls. Interpreting ethics rules involves many of the same "pure" statutory interpretation techniques I introduced the previous semester, and the students appear to easily make any needed translations. This exercise also helps prepare students to interpret other quasi-legislative authorities like court or evidentiary rules, administrative codes, and municipal ordinances.