Law Commons^™

The Tension Between Textualism And Substance-Over-Form Doctrines In Tax Law, Allen Madison

Allen Madison

This article discusses the tension that exists between the recent textualist approach taken in the U.S. Supreme Court and the judicially developed substance-over-form doctrines that pervade tax law. It sets forth Justice Antonin Scalia’s textualist approach, provides an overview of the substance-over-form doctrines, and then analyzes whether the current Supreme Court would uphold a case that overrode the literal text of the Internal Revenue Code on the basis of one of the doctrines. The article concludes that the current Supreme Court would reject any of these doctrines if faced with the issue.

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

Textual Imagination, Mary D. Fan

Articles

Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …

Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer

Michigan Law Review

Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VIP employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. For six years, Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment, that …

There Is No Such Thing As Textualism: A Case Study In Constitutional Method, Paul E. Mcgreal

Fordham Law Review

No abstract provided.

Textualism's Failures: A Study Of Overruled Bankruptcy Decisions, Daniel J. Bussel

Vanderbilt Law Review

Judges and legal scholars are engaged in a contentious, wide- ranging, and long-running debate over methods of statutory interpretation. Stripping the debate of some of its nuance without misrepresenting its essence, there are two camps: the "textualists" and the "pragmatists." Cass Sunstein recently argued that the question of interpretive method should be considered in light of evidence whether textualist methods work better or worse than pragmatic ones. To date, however, only limited empirical evidence has been systematically brought to bear on this question.

This Article presents new empirical evidence gleaned from twenty years of interpretation of the United States Bankruptcy …

The New Textualism And The Rule Of Law Subtext In The Supreme Court's Bankruptcy Jurisprudence, Alan Schwartz

NYLS Law Review

The Supreme Court is thought to use a method of statutory interpretation called "the new textualism" when construing Federal Statutes, including the Bankruptcy Code. The new textualism, in brief, ties interpreters more closely to the text than more traditional interpretative methods. This Essay inquires into the justifications for the new textualism, but its primary goal is to argue that the Court prefers an important justification of this interpretative method to the method itself. The justification holds that interpretation should advance the rule of law virtues of certainty and predictability. A court that is committed to the new textualism would construe …

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

All Faculty Scholarship

In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …

The Common Law And Statutes, Peter L. Strauss

Faculty Scholarship

Controversies about statutory interpretation and the proper roles for judges in interpretation are particularly noticeable in the Supreme Court but have penetrated downward throughout the judicial system. What I mean to explore here are some implications of our common law heritage and the presuppositions of a common law system for these controversies, that seem rarely noticed in the ongoing debates. I mean by this not only common law judging, but also what we might call common law legislating – that is, the practice of creating statutes to achieve marginal changes in existing law in response to perceived deficiencies, rather than …

Textualism, The Unknown Ideal?, William N. Eskridge Jr.

Michigan Law Review

In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the …

Textualism And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …

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. …

Translation Without Fidelity: A Response To Richard Epstein’S Fidelity Without Translation, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article is a response to Fidelity Without Translation by Richard Epstein (1997).

Explaining why a body of work is influential is inevitably a complex matter, but part of the success of Professor Epstein’s writings undoubtedly stems from their grounding in the original understanding of the Constitution. He has claimed the mantle of the framers, and that claim gives his reading of the takings clause a deep resonance it would not otherwise have.

Explicitly rejecting Epstein’s reading of the clause and the history that lay behind its adoption, the author has previously advanced his own view of the original understanding …

United States V. O'Hagan: The Supreme Court Abandons Textualism To Adopt The Misappropriation Theory, Amy E. Fahey

Fordham Urban Law Journal

This article analyzes the Supreme Courts ruling in United States v. O'Hagen holding that Section 10(b) of the Securities and Exchange Act can be applied to insider trading by corporate outsiders. The article argues that the Supreme Court incorrectly expanded the reach of the statute beyond that which Congress had intended.

Plain Meaning, The Tax Code, And Doctrinal Incoherence, Mary L. Heen

Law Faculty Publications

This Article examines the Supreme Court's interpretive approach in recent tax cases. Part I of the Article sets the stage by describing the Court's interpretive approach, its focus on the relative determinacy of statutory language, and the backdrop of Chevron. Part II examines the effect of these issues on tax law, focusing on three cases that construe the same Code provision, section 104(a)(2), but apply quite different interpretive approaches. In United States v. Burke, the Court appeared to find the provision ambiguous and relied in part upon an interpretation of the statute contained in a Treasury regulation. Subsequently, in Commissioner …

Constituting We The People , Mark Tushnet

Fordham Law Review

No abstract provided.

A Few Thoughts On Constitutionalism, Textualism, And Populism, Akhil Reed Amar

Fordham Law Review

No abstract provided.

Fame, The Founding, And The Power To Declare War, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power ... To declare War, [and] grant Letters of Marque and Reprisal." During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek …

The Other Side Of The Coin: Implications For Policy Formation In The Law Of Judicial Interpretation. Book Note: A Review Of A Matter Of Interpretation: Federal Courts And The Law By Antonin Scalia, Donald J. Kochan

Donald J. Kochan

Justice Scalia defends textualism as the only form of interpretation that should govern judicial interpretation of statutes and the Constitution. The book begins with an essay by Justice Scalia establishing the framework of his interpretive model and arguing that his model is mandated to achieve institutional legitimacy in a constitutional system of separated powers and for the protection of democracy. Comments to this essay follow from four distinguished scholars. Each comment is addressed in the final pages by a response from Justice Scalia. This Article presents an overview of Justice Scalia's argument, the arguments embodied in the comments, and discusses …

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford C. Mank

Washington and Lee Law Review

No abstract provided.

Statutory Interpretation And The Idea Of Progress, Daniel A. Farber

Michigan Law Review

A Review of William N. Eskridge, Dynamic Statutory Interpretation

Statutory Interpretation In Securities Jurisprudence: A Failure Of Textualism, Ediberto Román

Faculty Publications

This Article critiques the development of textualist theory in securities jurisprudence and analyzes the Central Bank decision as an example of the defects inherent in the application of a textualist approach. It demonstrates how the development of textualist securities jurisprudence stemmed from decisions that casually rejected precedent and mischaracterized existing law, thereby resulting in a distortion of the legislature’s intent. An analysis of the Securities Exchange Act demonstrates how the Central Bank Court’s approach towards statutory interpretation led to its failure to analyze other relevant Exchange Act provisions, including the most relevant provision – Section 20(a). The first section of …

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

Hiding The Ball, Pierre Schlag

Publications

No abstract provided.

Legislative History And Statutory Interpretation: The Supreme Court And The Tenth Circuit, Fritz Snyder

Oklahoma Law Review

No abstract provided.

Classical Rhetoric, Practical Reasoning, And The Law Of Evidence , Eileen A. Scallen

American University Law Review

No abstract provided.

The Illusion And Allure Of Textualism, Stephen A. Plass

Villanova Law Review

No abstract provided.

The Original Understanding Of The Takings Clause And The Political Process, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind …

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

Law-Making Responsibility And Statutory Interpretation, William D. Popkin

Indiana Law Journal

No abstract provided.