Legislation Commons^™

A Decision Theory Of Statutory Interpretation: Legislative History By The Rules, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. …

American Legal History Survey: Syllabus, Anders Walker

All Faculty Scholarship

This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

Knowledge, Attitudes Toward Corporations, And Belief In A Just World As Correlates Of Tort Reform Attitudes, Molly J. Walker Wilson, Ruth H. Warner

All Faculty Scholarship

Recent legislation in tort law has resulted in such changes as states capping punitive and non-economic damages as well as abolishing the collateral source rule and joint and several liability. The purpose of the present research is to examine attitudes toward changes in tort law. We asked American adults about their attitudes toward the civil justice system and its players, experiences in the civil justice system, and belief in a just world. We found that a more negative attitude toward litigation and juries, higher belief in a just world, and a more positive attitude toward corporations and doctors predicted a …

Reproductive Freedom And Virginia's 2012 General Assembly Session, Katherine Greenier

Richmond Journal of Law and the Public Interest

While the Governor approved H.B. 462, the mandatory ultrasound bill, H.B. 62, H.B. 1285, and S.B. 637 failed in the General Assembly.37 As introduced this 2012 session, H.B. 1 contained different bill language than the prior years it has been introduced. H.B. 62, H.B. 1285, and S.B. 637 were new bills, not seen in past years. An analysis and overview of these measures sheds light on the increasing attempts and the tactics used by legislators to undermine reproductive freedom.

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …

Copyright Policymaking As Procedural Democratic Process: A Discourse-Theoretic Perspective On Acta, Sopa, And Pipa, Annemarie Bridy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Obligatory Health, Noa Ben-Asher

Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …

Interpretive Divergence All The Way Down: A Response To Aaron-Andrew P. Bruhl And Ethan J. Leib, Elected Judges And Statutory Interpretation, 79 U Chi L Rev 1215 (2012), Anita S. Krishnakumar

Faculty Publications

This article is a response to the law review article cited in its title. It focuses on a corollary question raised by the article's analysis: if one takes seriously the proposition that it may make sense for elected judges to interpret statutes differently than do appointed judges, should judicial opinions written by elected judges look substantially different from those written by appointed judges? Part I examines the relative roles of judicial opinions written by elected versus appointed judges in a world in which divergence is practiced. Part II explores specific ways in which we might want or expect an elected …

Abuse, Mediation And The Catholic Church: How Enforcing And Improving Existing Statutes Will Help Victims Recover, Jeffrey Pruzan

Cardozo Journal of Conflict Resolution

Allegations of sexual abuse at the hands of religious figures is an epidemic that has spread throughout the United States and abroad.' In the United States alone, U.S. bishops have reported receiving allegations of abuse committed by 6,115 Catholic priests, or 5.6 percent of the 109,694 active U.S. priests since 1950. The U.S. bishops also reported receiving allegations from 15,235 victims, or 2.6 victims per priest; however, this figure is universally acknowledged to be low. Some estimates put the number of victims in the United States at over 280,000.

Report Don't Judge An Initiative By Its Title: A Report On The Titles Of California Ballot Measures, Debbie Kim

California Initiative Review (CIR)

No abstract provided.

Regulation Goes Medieval, Andrew A. Schwartz

Publications

Section 301 of the 2009 federal Credit Card Accountability, Responsibility, and Disclosure Act prohibits the issuance of consumer credit cards to young adults ages 18–20 unless the credit contract is cosigned by an older adult who accepts joint liability for the card, or else the young adult proves she has “independent means of repaying” her credit card obligations. This prohibition is at odds with a 50-year trend of extending the rights of adulthood to people ages 18–20. It also blocks an important source of credit for young entrepreneurs, who often use consumer credit to launch their enterprises.

Scaled Legislation And New Challenges In Statutory Interpretation, Jill M. Fraley

Kentucky Law Journal

No abstract provided.

Valuing Art In An Estate: New Concerns, Anne-Marie Rhodes

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Moot Issue? Rethinking Holocaust Era Restitution Of Jewish Confiscated Personal Property In Poland, Lara Weissman

Cardozo Journal of Conflict Resolution

Part I of this note will recount the historical events in Poland that resulted in the massive and ruthless appropriation of Jewish property, not only by the Nazis and the Communist regime, but also by non-Jewish Poles. The inadequate restitution policies following Poland's independence will then be explored, demonstrating Poland's unwillingness to deal with the theft that occurred within its borders, instead favoring sheer dismissal of the issue in the hopes of concentrating on rebuilding its war-torn country.

Part IIA will explore Poland's continued refusal to create and enforce policies that would assist in the restitution process, marking Poland as …

Contemporary Meaning And Expectations In Statutory Interpretation, Hillel Y. Levin

Scholarly Works

This Article introduces and explores an approach to, or theme within, statutory interpretation, one grounded in contemporary meaning and expectations. This approach posits that judges interpreting ambiguous statutes are and should be constrained by the understanding and expectations of the contemporary public as to the law’s meaning and application. These are developed in response to, and mediated by, the actions and statements of government officials and the broader community. The Article argues that this apparently radical approach is necessary in order for law to maintain its moral force, and further that the principles underlying it are embedded in several doctrines …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

Scholarly Works

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …

Thinking Like A Lawyer Abroad: Putting Justice Into Legal Reasoning, James Maxeiner

All Faculty Scholarship

Americans are taking new interest in legal reasoning. Thinking Like a Lawyer: A New Introduction to Legal Reasoning by Professor Frederick Schauer suggests why. According to Schauer, American legal methods often require decision-makers “to do something other than the right thing.” There has got to be a better way.

Now comes a book that offers Americans opportunities to look into a world where legal methods help decision-makers do the right thing. According to Reinhard Zippelius in his newly published Introduction to German Legal Methods, German legal methods help decision makers resolve legal problems “in a just and equitable manner.”

This …

"Coming Out Of The Shadows": Dream Act Activism In The Context Of Global Anti-Deportation Activism, Laura Corrunker

Indiana Journal of Global Legal Studies

This Article, based on ethnographic fieldwork with an undocumented, youth-led immigrant rights organization, explores undocumented youth activism in the United States in relation to global anti-deportation movements. The strategies that undocumented youth utilize in their fight for the DREAM Act, a bill that creates provisions for certain undocumented youth to legalize their status, are compared with examples of anti-deportation activism outside the United States. In comparing the DREAM Act movement with anti-deportation movements globally, three points of commonality emerge: (1) leadership of undocumented immigrants; (2) visibility; and (3) measures of "deservingness." This Article argues that comparing examples of immigrant activism …

Distrust And Clarify: Appreciating Congressional Overrides, James J. Brudney

Faculty Scholarship

Deborah Widiss continues to make important contributions in an area of statutory interpretation that has been largely neglected: the consequences of congressional overrides. Professor Widiss previously demonstrated how the Supreme Court and lower courts often confine the reach of statutes that purposefully override prior court decisions, thereby reviving aspects of the overridden judicial interpretations as ―shadow precedents.‖ In Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, Professor Widiss addresses the Supreme Court‘s further expansion of judicial power in the aftermath of congressional disapproval. Faced with the override of its textual interpretation in one employment discrimination statute, the Court inferred …

Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss

Articles by Maurer Faculty

Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the …

Sword Or Submission? American Indian Natural Resource Claims Settlement Legislation, Benjamin A. Kahn

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2012 Native American Law Student Association Moot Court Competition, Jocelyn Jenks, Jacquelyn Amour Jampolsky

American Indian Law Review

No abstract provided.

Contributor, Cassady V. Brewer

Faculty Publications By Year

No abstract provided.

The Anti-Injunction Act And The Individual Mandate, Steve R. Johnson

Scholarly Publications

The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can …

When Does F*** Not Mean F***?: Fcc V. Fox Television Stations And A Call For Protecting Emotive Speech, W. Wat Hopkins

Federal Communications Law Journal

The Supreme Court of the United States does not always deal cogently with nontraditional language. The most recent example is FCC v. Fox Television Stations, in which the Justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan's advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech

Antitrust Review Of The At&T/Tmobile Transaction, Allen P. Grunes, Maurice E. Stucke

Federal Communications Law Journal

In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation's four largest mobile wireless telecommunications services providers, AT&T Inc. and T-Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice's lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile? This Article examines the recent …

Spectrum Reallocation And The National Broadband Plan, Jeffrey A. Eisenach

Federal Communications Law Journal

Of the several significant changes in United States telecommunications policy proposed by the National Broadband Plan, none are more substantial than its proposals for spectrum policy. In particular, the Plan proposes to reallocate 500 MHz of spectrum from broadcast television, mobile satellite, government and other current uses to "mobile broadband" through the use of innovative "incentive auctions" and other voluntary, market-oriented mechanisms. The Plan's spectrum proposals have the potential to be a major step forward in the decades-long, bipartisan effort to replace "command-and-control" spectrum allocation with a more flexible, dynamic and market-oriented approach. Considerable work remains to be done, however, …

Putting A Price On Dirt: The Need For Better-Defined Limits On Government Fees For Use Of The Public Right-Of- Way Under Section 253 Of The Telecommunications Act Of 1996, Thomas W. Snyder, William Fitzsimmons

Federal Communications Law Journal

This Article addresses the enactment and inconsistent application of Section 253 of Telecommunications Act of 1996 ("FTA"). Most courts initially held that Section 253 imposed strong limitations on local governments seeking to charge fees to telecommunications carriers for use of the public rights-of-way ("PROW') by generally limiting the fees to management costs. Unfortunately, recent cases allowed local governments broad latitude in charging PROW fees to generate revenue, even where the fees are used to subsidize other government services. These "revenue-generating" fees are dangerous to the development of competition and the deployment of Internet services, which were the two primary goals …

Statewide Cable Franchising: Expand Nationwide Or Cut The Cord?, James G. Parker

Federal Communications Law Journal

In the name of increasing competition in the cable television market, Congress passed the Telecommunications Act of 1996. While this eliminated the barriers to entry using federal law, it did not change the nature of municipality-based cable system monopolies. In an effort to expand competition more quickly and efficiently, the phone companies (Verizon and AT&T) successfully supported legislation in at least twenty-five states that permits a single state application to compete statewide. This Note explores the varying approaches taken in the laws passed to date, analyzes the outcomes flowing from those implemented plans, and provides recommendations of the best practices …