Category Archives: statutory interpretation

“The Disparate Impact Canon”

January 28, 2018, 9:50 amelection administration, statutory interpretation, Supreme CourtRick Hasen

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… Continue reading

Should Alabama Republican Party Get to Replace Roy Moore on Senate Ballot If He Withdraws?

November 9, 2017, 10:39 amstatutory interpretationRick Hasen

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

“Congress, Statutory Interpretation, and the Failure of Formalism”

July 19, 2017, 8:19 pmstatutory interpretationRick Hasen

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

“After the Override: An Empirical Analysis of Shadow Precedent”

June 12, 2017, 8:24 pmlegislation and legislatures, statutory interpretationRick Hasen

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… Continue reading

7th Circuit En Banc Decision in Hively, on Sexual Orientation Discrimination under Title VII, Great Statutory Interpretation Teaching Case

April 5, 2017, 8:03 amstatutory interpretationRick Hasen

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… Continue reading

“Judging Ordinary Meaning”

March 27, 2017, 7:19 amstatutory interpretationRick Hasen

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

“Textualism and Statutory Precedents”

March 22, 2017, 8:59 amstatutory interpretationRick Hasen

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… Continue reading

“Legislative Underwrites”

March 18, 2017, 6:01 pmstatutory interpretationRick Hasen

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… Continue reading

“Lack of Oxford Comma Costs Maine Company Millions in Overtime Dispute”

March 16, 2017, 1:31 pmstatutory interpretationRick Hasen

NYT reports.

“Textualism and Stare Decisis”

September 30, 2016, 7:14 amlegislation and legislatures, statutory interpretation, Supreme CourtRick Hasen

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… Continue reading

“What If Trump Drops Out?”

August 4, 2016, 11:30 amcampaigns, statutory interpretationRick Hasen

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

“Civil Rules Interpretive Theory”

August 1, 2016, 10:13 amstatutory interpretationRick Hasen

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

“Precedent in Statutory Interpretation”

June 20, 2016, 7:33 amstatutory interpretationRick Hasen

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… Continue reading

“Congress at Work: A Documentary Supplement for Courses in Legislation”

June 14, 2016, 6:57 amlegislation and legislatures, pedagogy, statutory interpretationRick Hasen

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… Continue reading