Law Commons^™

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

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

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

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 …

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

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

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 …