Legislation Commons^™

Unplanned Obsolescence: Interpreting The Automatic Telephone Dialing System After The Smartphone Epoch, Walter Allison

Michigan Law Review

Technology regulations succeed or fail based upon their ability to regulate an idea. Constant innovation forces legislators to draft statutes aimed at prohibiting the idea of a device, rather than a specific device itself, because new devices with new capacities emerge every day. The Telephone Consumer Protection Act (TCPA) is a federal statute that imposes liability based on the idea of an automatic telephone dialing system (ATDS). But the statute’s definition of the device is ambiguous. The FCC struggles to coherently apply the definition to new technologies, and courts interpret the definition inconsistently. Federal circuit courts have split over these …

Resolving "Resolved": Covenants Not To Sue And The Availability Of Cercla Contribution Actions, Jacob Podell

Michigan Law Review

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—as part of its dual goals of cleaning up hazardous-waste sites and ensuring that the polluter pays for that cleanup—gives private parties two mutually exclusive causes of action: cost recovery and contribution. Contribution is available in limited circumstances, including if the party has “resolved” its liability with the government. But CERCLA does not define this operative term. Federal courts are split over how the structure of a settlement resolves liability. Several courts follow Bernstein v. Bankert, which held that any conditions precedent and nonadmissions of liability strongly suggest that a party …

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

Articles

Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.

Textualism’S Gaze, Matthew L.M. Fletcher

Michigan Journal of Race and Law

This Article attempts to address why textualism distorts the Supreme Court’s jurisprudence in Indian law. I start with describing textualism in federal public law. I focus on textualism as described by Justice Scalia, as well as Scalia’s justification for textualism and discussion about the role of the judiciary in interpreting texts. The Court is often subject to challenges to its legitimacy rooted in its role as legal interpreter that textualism is designed to combat.

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Faculty Scholarship

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on …

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

Articles

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation …

Why R&D Should Be Allocated To Subpart F And Gilti, Stephen E. Shay, Reuven S. Avi-Yonah, Patrick Driessen, J. Clifton Fleming Jr., Robert J. Peroni

Articles

This article responds to the notice of proposed rulemaking under sections 861 and 904 (REG105495-19) published in the Federal Register December 17, 2019 (the proposed regulations). The proposed regulations would not allocate U.S. shareholder deductions for research and development or experimentation (R&D or R&E) expenditures under section 174 (R&D deductions) to a gross income inclusion under section 951 (subpart F inclusion) or section 951A (global intangible low-taxed income)1 from a controlled foreign corporation for foreign tax credit limitation purposes.

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

Rodriguez, Tucker, And The Dangers Of Textualism, Reuven S. Avi-Yonah

Articles

The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge-made law, as evidenced by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the Internal Revenue Code is so complicated and lends itself to manipulation so that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory decision from 1935 involved just such a case: The literal application of the code resulted …

Uncovering Wholesale Electricity Market Principles, Michael Panfil, Rama Zakaria

Michigan Journal of Environmental & Administrative Law

This paper examines, enunciates, and makes explicit a set of market principles historically relied upon by the Federal Energy Regulatory Commission (FERC) to regulate wholesale electricity markets as required under the Federal Power Act (FPA). These identified competitive market principles are supported by policy and legal foundations that run through a myriad of FERC orders and court decisions. This paper seeks to make that history and those implicit market principles explicit by distilling and organizing Commission Orders and court decisions. It concludes that five market principles, each with multiple subprinciples, can be identified as elemental to how FERC understands and …

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

Scholarly Works

So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

A Matter For Interpretation: An Inquiry Into Confederate Symbolism And The Florida State Flag, Nicholas Mignanelli, Sarah C. Slinger

Scholarly Works

Are the red bars found on Florida's state flag a remnant of early twentieth-century nostalgia for the Confederacy? Who first proposed this design and why? What did this change mean to the citizens who witnessed it? This Article is an attempt to answer these questions by approaching them through the lenses of original intent and original meaning. In doing so, the Authors advance new strategies for decision-makers interested in uncovering the motives of those who first erected or affixed allegedly Confederate monuments and symbols.

The Audiences Of Statutes, David S. Louk

Cornell Law Review

Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can "get the message," conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administrative agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and language, this Article contends that Judicial statutory interpretation serves an important yet underappreciated role in providing a …

The Statutory Interpretation Muddle, Richard H. Fallon, Jr.

Northwestern University Law Review

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, …

Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus

Pepperdine Law Review

There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even as academic and …

Examining The Administrative Unworkability Of Final Agency Action Doctrine As Applied To The Native American Graves Protection And Repatriation Act, Adam Gerken

Michigan Journal of Environmental & Administrative Law

The application of the Administrative Procedure Act (“APA”) to the Native American Graves Protection and Repatriation Act (“NAGPRA”) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is simultaneously arbitrary and unclear. In the Ninth Circuit’s holding in Navajo Nation v. U.S. Department of the Interior, the Court applied final agency action doctrine in a manner that was legally correct but administratively unworkable. The Court’s opinion contravenes both the reasoning behind the APA final agency action …

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely …

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …

Shots Fired: Digging The Uniformed Services Employment And Reemployment Rights Act Out Of The Trenches Of Arbitration, Lisa Limb

Michigan Law Review

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect servicemembers from discrimination by civilian employers and to provide servicemembers with reemployment rights. Recent circuit court decisions, however, have maimed these protections by ruling that mandatory arbitration is permissible under USERRA. This Note argues that such rulings conflict with USERRA’s plain language, statutory structure, and purpose. Ultimately, in light of strong public policy considerations, this Note contends that mandatory arbitration should not be permissible under USERRA and proposes that Congress amend the Act to explicitly prohibit arbitration.

More Than Birds: Developing A New Environmental Jurisprudence Through The Migratory Bird Treaty Act, Patrick G. Maroun

Michigan Law Review

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to “take” or “kill” any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called “incidental takings” fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike—not to mention migratory birds. Many of the most important environmental …

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …

Democratizing Interpretation, Anya Bernstein

Faculty Scholarship

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

Twelve Injured Men: Why Injured Jurors Should Not Receive Workers' Compensation Coverage From The Courts, Corey Baron

St. John's Law Review

(Excerpt)

This Note argues that the legislature should add a provision to New York’s Workers’ Compensation Act that expressly precludes jurors from coverage. Such a provision would comport with the policy underlying the statute, the statute’s structure, and the statute’s language. Moreover, that legislative provision would prevent the court from wasting the considerable time and expense of grappling with other courts’ inconsistent interpretations of workers’ compensation statutes and their underlying policies. First, Part I of this Note provides an overview of the workers’ compensation law and explores the policies underlying the advent of workers’ compensation statutes. Then, Part II surveys …

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their …

Legal Innocence And Federal Habeas, Leah Litman

Articles

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence-the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them …

Why The Copyright Act Expressly Preempts State-Level Public Performance Rights In Pre-1972 Recordings, James Fahringer

Michigan Telecommunications & Technology Law Review

Over the past several years, two former bandmates in the 1960s rock group, The Turtles, have initiated several lawsuits against the popular music streaming services, Pandora and Sirius XM, arguing that the band owns common law copyrights in the sound recordings of its songs, and that these state-level copyrights grant the band an exclusive public performance right in its sound recordings. If accepted, this argument has the potential to significantly distort federal copyright policy because states would not be constrained by any of the balancing features of the Copyright Act, including Digital Millennium Copyright Act (DMCA) safe harbors for Internet …

Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.

Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the …