“Active Avoidance: The Modern Supreme Court and Legal Change”

New article by Neal Katyal and Thomas Schmidt in the Harvard Law Review, with a response by Caleb Nelson.

Here is how Katyal and Schmidt situate their work in relation to other recent work on the avoidance canon, including my own:

1 Others have discussed the use of the avoidance canon in the Roberts Court. See Neal Devins, Constitutional Avoidance and the Roberts Court, 32 U. DAYTON L. REV. 339 (2007); Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP.CT. REV. 181. Professor Neal Devins argues that the Roberts Court “need not make extensive use of constitutional avoidance,” Devins, supra, at 339, because Congress is “less engaged in constitutional matters” and seems less “poised to strike back at the Court” than it has been in the past, id. at 345. Professor Richard Hasen explores inconsistencies in the Roberts Court’s applications of the canon. Professor Richard Re has also written a short, incisive piece on the Roberts Court’s tendency to signal legal change before actually following through with it, and “active avoidance” could be seen as an instance of that broader tendency. See Richard M. Re, The Doctrine of One Last Chance, 17 GREEN BAG 2D 173, 182 (2014). Our focus is different from these prior efforts: we use recent avoidance decisions by the Roberts Court to assess and critique the avoidance canon more generally.

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