George Thomas WaPo oped: As the FBI conducts its investigations into the sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh, just about everyone has been distracted from questions about his legal philosophy. But let’s not forget, as Justice Neil M. … Continue reading
Category Archives: statutory interpretation
Justin here, with my own take on Kavanaugh and the election process, also cross-posted over at the Take Care blog: In the 2016 elections, we were hacked. I don’t mean the breach of the DNC systems, serious as that was. … Continue reading
Amy Semet has posted this draft on SSRN. Here is the abstract: ow do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though … Continue reading
I have written this oped for the National Law Journal. It begins: The battle over Justice Antonin Scalia’s approach to interpreting federal statutes shows no signs of abating even two years after his death, as a pair of opinions issued Wednesday by Justice … Continue reading
Michael Morley has posted this draft on SSRN (forthcoming, U Pa L. Rev. Online). Here is the abstract: During a recent oral argument, Justice Sonia Sotomayor raised the possibility of rejecting a proposed interpretation of a federal statute, the National Voting … Continue reading
With allegations that Republican candidate for Senate in Alabama Roy Moore initiated sexual contact with a 14-year-old when he was 32, there is already talk about him withdrawing from the race. Derek Muller reports that Alabama law would not allow … Continue reading
Can’t wait to read this new one from Abbe Gluck in U Chicago L. Rev: The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s … Continue reading
Brian Broughman and Deborah Widiss have written this important article for the Journal of Legal Studies. Here is the abstract: Congressional overrides of prior judicial interpretations of statutory language are typically defined as equivalent to judicial overrulings, and they are presumed to … Continue reading
The opinion in Hively is here, Howard rounds up the coverage, and Joshua Matz explains its substantive significance to antidiscrimination law (and why the Court is likely to take the case, and with a new Justice Gorsuch, could well reverse). But … Continue reading
Justice Thomas Lee (Utah Supreme Court) and Stephen Mouritsen have posted this draft on SSRN. Here is the abstract: Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often … Continue reading
Anita Krishnakumar has posted this draft on SSRN (forthcoming, Virginia Law Review). Here is the abstract: This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: The Court’s textualist Justices—or at least some … Continue reading
This paper on Leib and Brudney looks to be very good (forthcoming, Virginia Law Review): This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch … Continue reading
NYT reports. … Continue reading
New from Anita Krishnakumar: On the surface, textualism and the doctrine of statutory stare decisis seem to have much in common — both are rule-bound and emphasize predictability and stability in the law, legislative supremacy, the need to limit judicial … Continue reading
I have written this piece for the LA Times. It begins: Donald Trump has had a very bad week, picking inexplicable fights with the parents of fallen soldiers, with war heroes, fire marshals and even babies. It’s probably just wishful … Continue reading
Lumen Mulligan and Glen Staszewski have posted this draft on SSRN. Here is the abstract: We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a … Continue reading
Lawrence Solan has posted this draft on SSRN (forthcoming, North Carolina Law Review). Here is the abstract: In interpreting statutes, judges frequently refer to their obligation to take a back seat to the legislature, and to avoid substituting their own policy … Continue reading
New from Peter Strauss: Casebooks on Legislation typically omit legislative materials, as such, giving students little if any chance to work directly with statutes and the processes that create them. Yet lawyers may become intimately involved in the legislative process, … Continue reading
I just had a chance to read Lisa Manheim’s excellent article, forthcoming in the Iowa Law Review. Here is the abstract: Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent … Continue reading
Larry Solum has posted this draft on SSRN: This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a … Continue reading
Lisa Heinzerling has posted this draft on SSRN (forthcoming, William and Mary Law Review). Here is the abstract: With three recent decisions – UARG v. EPA, King v. Burwell, and Michigan v. EPA – the Supreme Court has embraced a … Continue reading
Jim Brudney and Larry Baum have posted this draft on SSRN. Here is the abstract: This article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It … Continue reading
Interesting new symposium issue in The Theory and Practice of Legislation. You can read Ittai Bar Siman Tov’s substantive introduction to the symposium at this free-access link. Looks great! … Continue reading
Anita Krishnakumar has written this article for the George Washington Law Review. Here is the abstract: Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the … Continue reading
Anita Krishnakumar has posted this draft on SSRN. Here is the abstract: This paper provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases … Continue reading
You can now watch the video of this panel at the Federalis Society Annual faculty conference: Panel: The New Chevron Skeptics – Event Video Moderator: Prof. John McGinnis, Northwestern University School of Law Prof. Michael Herz, Yeshiva University Benjamin N. Cardozo … Continue reading
Michael Herz has posted this draft on SSRN (forthcoming, Columbia Law Review). Here is the abstract: The Supreme Court’s decision in Chevron U.S.A. Inc. v. NRDC continues to obsess academics and courts alike. Despite all the attention, however, the “Chevron revolution” … Continue reading
Back in September I flagged a forthcoming article by Richard Re, in The Green Bag. The piece is now out, and it is brilliant. This is one of those things that you read and you say, “Damn, why didn’t I … Continue reading
Mark Walsh @SCOTUSBlog: On Monday at the Supreme Court, Justices Stephen G. Breyer and Antonin Scalia engaged in a skirmish over one of their favorite topics: using committee reports and other legislative history to help interpret a statute (Breyer) versus … Continue reading
Insightful post from Richard Re. … Continue reading
Report and video (via How Appealing). … Continue reading
Harvard Law Review Forum: Pofessor Abbe Gluck is far more steeped in the scholarly literature on statutory interpretation than I, and far more familiar with the workings of Congress than I, including the specific legislative process that generated the provision … Continue reading
Jim Brudney and Larry Baum have posted this draft on SSRN (Yale L.J. Forum). Here is the abstract: The remarkable rise in dictionary usage by the Supreme Court since the mid-1980s has been a subject of considerable scholarly and media … Continue reading
Law in Linguistics: Karl Llewellyn, a prominent mid-20th century legal scholar, famously said that “there are two opposing canons on almost every point.” On November 3, the Supreme Court will hear argument in Lockhart v. United States, a case that … Continue reading
Richard Pierce has posted this draft on SSRN. Here is the abstract: In this essay, Professor Pierce describes the history of the deference doctrines the Supreme Court has announced and applied to agency interpretations of ambiguous statutes and rules over … Continue reading
Luke McLoughlin: In a brief filed with the Supreme Court on September 29, 2015 in the case Kingdomware Technologies, Inc. v. United States, 14-916, the government abandoned the restrictive interpretation of the 2006 Veterans Act that it pressed before the U.S. … Continue reading
My new oped at The NLJ. … Continue reading
Simon Lazarus blogs. Here are Part II and Part III. … Continue reading
Dare not raise Holy Trinity Church, but no need to. My earlier post on the return of purposivism is here. … Continue reading
The Supreme Court’s decision in King v. Burwell is interesting not only in its result but in its application of statutory interpretation. Before the case, so much ink was spilled (and more virtual ink virtually spilled) on the question of … Continue reading
Here. Some analysis to come later. … Continue reading
As the Supreme Court gets ready to decide this key Obamacare case, watch if Chief Justice Roberts or Justice Kennedy (f they make up a majority holding subsidies cannot apply to those in the federal exchange) engage in the total … Continue reading
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 … Continue reading
Must-read deep dive into legislative drafting of challenged ACA provision by Robert Pear NYT. … Continue reading
Brian Broughman and Deborah Widiss have posted this draft on SSRN. Here is the abstract: Abstract: The ability of Congress to override judicial interpretations of statutory language is central to legislative supremacy. Both political science and legal scholarship assume, often … Continue reading
NYT’s The Upshot: A once-popular bill to help victims of sex trafficking was derailed in the Senate recently when Democrats discovered that language restricting funding for abortions was in the bill — sneaked in, they charged, by Republicans. If Democrats … Continue reading
Michael Gilbert has posted this draft on SSRN (forthcoming, Virginia Law Review). Here is the abstract: Sincere rules mandate behavior a rule-maker wants, while insincere rules mandate different behavior. To illustrate, if a legislator wants cars to travel at 55 miles … Continue reading
From today’s oral argument in King v. Burwell: But today, Congress very rarely overturns the Supreme Court, especially in high profile cases with great partisan salience, except in situations (unlike today) where the Congress and Presidency are all controlled by … Continue reading
Paul Kane writes for WaPo. … Continue reading
At Slate: Unless you are a lawyer or a glutton for punishment, you probably want to avoid reading the new D.C. Circuit and 4th Circuit opinions reaching conflicting results on the legality of key provisions of the Affordable Care Act—the … Continue reading