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Full-Text Articles in Law
The Eleventh Amendment And The Nature Of The Union, Bradford R. Clark
The Eleventh Amendment And The Nature Of The Union, Bradford R. Clark
GW Law Faculty Publications & Other Works
Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing "any suit" against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical …
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 …
Estoppel And Textualism, Gregory E. Maggs
Estoppel And Textualism, Gregory E. Maggs
GW Law Faculty Publications & Other Works
How might judges who purport to adhere to textualism justify their use of estoppel to affect the application of statutes that say nothing about estoppel? This essay addresses this question. It considers six possible arguments that courts have made or might make to rationalize the recognition of unwritten exceptions to statutes in the name of estoppel. These arguments include the following: (1) Even though the statutory provision at issue says nothing about estoppel, some other legislation expressly authorizes courts to invoke equitable principles, including estoppel; (2) The legislation contains an implied term authorizing the application of estoppel principles; (3) Courts …
The Polymorphic Principle And The Judicial Role In Statutory Interpretation, Jonathan R. Siegel
The Polymorphic Principle And The Judicial Role In Statutory Interpretation, Jonathan R. Siegel
GW Law Faculty Publications & Other Works
The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on …
Translating Federalism: A Textualist Reaction, Gregory E. Maggs
Translating Federalism: A Textualist Reaction, Gregory E. Maggs
GW Law Faculty Publications & Other Works
In his rich and important article, Translating Federalism: United States v Lopez, Professor Lawrence Lessig advances two ambitious and provocative claims. Lessig first asserts that the Supreme Court has sought to control the expansion of federal power by "translating" the Commerce Clause instead of following the Clause's textual meaning. Second, Lessig proclaims that, as a normative matter, the Supreme Court should engage actively in this type of translation. In his view, the Court shows greater fidelity to the Constitution by reading it in ways that preserve the document's original function than the Court exhibits by strictly following the document's text. …