Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
- Publication Type
Articles 1 - 6 of 6
Full-Text Articles in Law
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Anthony O'Rourke
Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …
The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian
The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian
Journal of the National Association of Administrative Law Judiciary
While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although Congress …
Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp
Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp
Duke Journal of Constitutional Law & Public Policy Sidebar
This Commentary considers how the Fifth Circuit characterizes “services, programs, and activities” of public agencies in Ivy v. Williams, in the context of determining whether a private entity is subject to federal antidiscrimination law. “Services, programs, and activities” of public agencies must comply with Title II of the Americans with Disabilities Act, whether directly distributed by a public or a private entity. This Commentary argues private driving schools in Texas that distribute a driving course necessary to obtaining a drivers’ license are subject to Title II because the providing the course functionally constitutes a program of the Texas Education …
The Inference From Authority To Interpretive Method In Constitutional And Statutory Domains, Kevin M. Stack
The Inference From Authority To Interpretive Method In Constitutional And Statutory Domains, Kevin M. Stack
Vanderbilt Law School Faculty Publications
Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation as largely overlapping, continuous, or converging. For some, this overlap follows directly from the Constitution's status as a form of legislated law. In this way of thinking, because the Constitution, like a statute, was bargained over and formally adopted, it should be interpreted in accordance with general principles applicable to legislated law. Proponents of this view argue that if constitutional interpretation appears distinctive in practice, that is …
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Journal Articles
In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …
R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore
All Faculty Publications
The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …