Legislation Commons^™

The Violence Against Women Act Project: Teaching A New Generation Of Public Interest Lawyers, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

The Fdic's Fraudulent Conveyance Power Under The Crime Control Act Of 1990: Bank Insolvency Law And The Politics Of The Iron Triangle, Edward J. Janger

Faculty Scholarship

No abstract provided.

The Modern Parol Evidence Rule And Its Implications For New Textualist Statutory Interpretation, Stephen F. Ross, Daniel Trannen

Faculty Scholarship

Part I of this article focuses on the history of parol evidence in contract interpretation, describing both Williston's and Corbin's definition and application of the parol evidence rule. With the adoption of the UCC and the Second Restatement, we suggest that Corbin's position-that expansion of admissibility of parol evidence will more accurately reflect the drafters' manifest intentions and minimize the judge's personal biases-has been accepted by experts and legislators alike. In Part II, we summarize the use of legislative history in statutory interpretation, focusing on the rise of the New Textualism and its critique of the use of legislative history …

Reflections On Group Action And The Law Of The Workplace Symposium: The Changing Workplace, James J. Brudney

Faculty Scholarship

Sixty years after the National Labor Relations Act (NLRA) was passed, collective action appears moribund. Current analysis burying and praising the NLRA has focused primarily on the changed economic realities of the product and labor markets. Yet there is another story to be told involving a comparable transformation of the legal culture. Relying in part on empirical analysis of court decisions, I argue that changes in federal workplace law over the past thirty years have undermined the concept of group action-in particular collective bargaining-as a preferred means of regulating the employment relationship. These changes are the product of leading institutional …

Famous Victory: Collective Bargaining Protections And The Statutory Aging Process, A , James J. Brudney

Faculty Scholarship

When it enacted the National Labor Relations Act in 1935, Congress gave statutory recognition to collectively bargained terms and conditions of employment. In recent decades, the number of cases in which the Supreme Court has interpreted the NLRA has declined, leaving the Act's interpretation and enforcement primarily to the National Labor Relations Board and the federal courts of appeals. In this Article, Professor Brudney presents the results of his study of 1,224 NLRB adjudications and their fate upon federal court review, from 1986 to 1993. Professor Brudney analyzes the reversal and affirmance data, and identifies areas of general Board-court agreement …

Paint-By-Numbers Tax Lawmaking, Michael J. Graetz

Faculty Scholarship

Although their meaning and contours have long been controversial, the general criteria for evaluating changes in tax law enjoy both stability and consensus. At least since Adam Smith, there has been virtually universal agreement that the nation's tax law should be fair, economically efficient, and simple to comply with and to administer. Tax law changes should be designed to make the law more equitable, easier to comply with, more conducive to economic growth, and less likely to interfere with private economic decisionmaking.

Precisely what these criteria imply for policymaking is controversial, however. Fairness is often said to require that people …

Linguistics And Legal Epistemology: Why The Law Pays Less Attention To Linguists Than It Should, Gary S. Lawson

Faculty Scholarship

Law and linguistics ought to be natural partners. Modem statutory and constitutional interpretation increasingly focuses on the generally accepted public meaning of legal language. Even persons who do not believe (as I do) that some form of public understanding of the relevant text is the end all, if not quite the be-all, of such interpretation are likely to regard the public understanding of statutory language as at least one relevant factor in legal interpretation. And who better than linguists to inform the law about the true facts regarding public usage and understanding of legal language?

The Limited Relevance Of Plain Meaning, Stephen F. Ross

Faculty Scholarship

In this essay, the author takes the position that linguists' principal expertise - ascertaining how language is used by ordinary speakers of English - is often of little value in interpreting controversial non-criminal federal statutes. Although linguistic techniques might still aid in understanding their meaning, the author's thesis is that extrinsic evidence that is known and accessible to this small sub-community - such as legislative history, established norms of construction, and other evidence about the context in which the legislation arose - is more likely than linguistic analysis to help an outside judge shed light on what Congress meant and …

Feminist Lawmaking And Historical Consciousness: Bringing The Past Into The Future, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Bonding, Structure And The Stability Of Political Parties: Party Government In The House, Gary W. Cox, Mathew D. Mccubbins

Faculty Scholarship

The public policy benefits that parties-deliver are allocated by democratic procedures that devolve ultimately to majority rule. Majority-rule decision making, however, does not lead to consistent policy choices; it is "unstable." In this paper, we argue that institutions - and thereby policy coalitions -- can be stabilized by extra-legislative organization. The rules of the Democratic Caucus in the U.S. House of Representatives dictate that a requirement for continued membership is support on the floor of Caucus decisions for a variety of key structural matters. Because membership in the majority party’s caucus is valuable, it constitutes a bond, the posting of …

Drafting Commercial Law For The New Millennium: Will The Current Process Suffice?, Neil B. Cohen, Barry Zaretsky

Faculty Scholarship

No abstract provided.

The Saga Of Wiretapping In France: What It Tells Us About The French Criminal Justice System, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Symposium On Securities Law Enforcement Priorities, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Douglas H. Wilkins, Robert H. Blumenthal, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.²

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen F. Ross

Faculty Scholarship

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.

On The Brink: The First Amendment In The Rehnquist Court, 1990-91 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Codification Of Supplemental Jurisdiction: Anatomy Of A Legislative Proposal, Arthur D. Wolf

Faculty Scholarship

The historic nature of congressional action in codifying supplemental jurisdiction in section 1367 calls for a close examination of the legislative process and product. Section I of this Article presents a brief survey of the development of supplemental jurisdiction. Section II examines the history of the legislative process that produced section 1367. Section III contains a preliminary review of judicial decisions under the new supplemental jurisdiction statute. The Article concludes with some editorial remarks regarding the statute and the process by which it became public law.

Positive Canons: The Role Of Legislative Bargains In Statutory Interpretation, Mathew D. Mccubbins, Roger G. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

Copyrights And State Liability, Beryl R. Jones-Woodin

Faculty Scholarship

No abstract provided.

Suretyship Principles In The New Articles 3: Clarifications And Substantive Changes, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Parental Leaves And Poor Women: Paying The Price For Time Off, Maria O'Brien

Faculty Scholarship

This Article presents a critique of unpaid "parental" leaves and the parental leave legislation recently passed by Congress.1 Eight states have already enacted parental leave statutes of various kinds.' For the sake of simplicity and uniformity, however, this Article focuses on the proposed federal legislation3 and its anticipated effects on unemployed and underemployed women.4 Specifically, this Article argues that the debate about parental leave 5 has ignored the possibility that the cost of this mandated benefit is likely to be borne by poor, low-skill working women6 who will find that their job opportunities narrow as employers try to shift some …

Comparable Worth In Arbitration, Christine D. Ver Ploeg

Faculty Scholarship

In 1992 Minnesota became a pioneer in the arena of equal pay for equal work by enacting the Minnesota Local Government Pay Equity Act/Comparable Worth Law (“CWL”), which allocated nearly $22 million to remedy wage disparities between female dominated and male dominated classes at the state level. Each local government had to determine a new pay level for public employees taking into account whether it was a male or female dominated field. Many of these determinations were challenged by unions basing their challenges on two primary themes: (1) the methodologies used were flawed; (2) the determinations were invalid because the …

Sunstein's New Canons: Choosing The Fictions Of Statutory Interpretation Exchange, Eben Moglen, Richard J. Pierce Jr.

Faculty Scholarship

In Interpreting Statutes in the Regulatory State, Cass Sunstein grapples with two of the most difficult and important questions concerning governance of the modern administrative state. First, what institution should have the dominant role in interpreting ambiguous agency-administered statutes? And second, how should the institution perform that task? Sunstein rejects the Supreme Court's answer to the first question, characterizing its assignment of a dominant interpretive role to agencies in Chevron U.S.A., Inc. v Natural Resources Defense Council as "the fox guarding the hen house." Sunstein prefers to charge judges with the responsibility of resolving most interpretive disputes. In answer to …

The Fair Housing Amendments Act Of 1988: New Strategies For New Procedures, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Panel Iii: Congressional Control Of The Administration Of Government: Hearings, Investigators, Oversight, And Legislative History, Stephen Williams, Griffin Bell, L. Gordon Crovitz, Peter L. Strauss, Michael Davidson

Faculty Scholarship

My remarks will be the first on the panel to address the problems of legislative history. We have heard two quite illuminating discussions of congressional oversight activities, with which I largely agree philosophically. When one then reaches the questions of why is this happening, and whether anything can be done about it, the issues become more difficult. My remarks address some complications that may arise from the current distaste for legislative history that may make the oversight problem a little bit worse.

Under Advisement: Attorney Fee Forfeiture And The Supreme Court, Stacy Caplow

Faculty Scholarship

No abstract provided.

Reaganist Realism Comes To Detriot, Stephen F. Ross

Faculty Scholarship

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that …

A Theory Of Political Control And Agency Discretion, Randall L. Calvert, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

A major issue in the study of American politics is the extent to which electoral discipline also constrains bureaucrats. In practice, executive agencies operate with considerable independence from elected officials. However,the entire process of policy execution is a game among legislators.the chief executive. and bureaucratic agents. It includes the initial delegation of authority, the choice of policy alternatives,and opportunities for oversight and control. A simple model of this process demonstrates an important distinction between bureaucratic authority and bureaucratic discretion. Indeed.in its simplest form, the model predicts a world in which bureaucrats are the sole active participants in policymaking, but in …

Structure And Process, Politics And Policy: Administrative Arrangements And The Political Control Of Agencies, Mathew D. Mccubbins, Roger D. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss

Faculty Scholarship

Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from …