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
Category Archives: statutory interpretation
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
Worth reading. … Continue reading
Interesting Marty Lederman post. … Continue reading
Over at the CAC, Brianne Gorod sees good things for the government’s position in King v. Burwell based on today’s ruling in the Yates (fish) case at the Supreme Court: With the Supreme Court scheduled to hear oral argument inKing v. … Continue reading
Today the Court divides 5-4 on whether “records and documents” are similar to “fish and crocodiles” in some meaningful way. It’s a party for statutory interpretation geeks. Really interesting to watch Justice Kagan write a super-snarky dissent (is the the second … Continue reading
Dan Rodriguez, Edward Stiglitz, and Barry Weingast have posted this draft on SSRN. Here is the abstract: Executive discretion over policy outcomes is an inevitable feature of our political system. However, our commitment to separation of powers constrains this discretion; … Continue reading
Very important for Legislation and ad law folks. … Continue reading
Victoria Nourse has posted this draft on SSRN (Boston College Law Review). Here is the abstract: This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts — legislative intent and legislative history. Textualists urge … Continue reading
Here. … Continue reading
Anita Krishnakumar has posted this draft on SSRN. Here is the abstract: This Article offers the first targeted study of the Supreme Court’s use of the canons and other tools of statutory interpretation in a “dueling” manner — i.e., to … Continue reading
Anita Krishnakumar has posted this draft on SSRN. 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 “dog that did not … Continue reading
Bertrall Ross has posted this draft on SSRN (University of Chicago Legal Forum). Here is the abstract: What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with … Continue reading
A great event Dec. 10-11 in Israel that I was hoping to attend but could not because of a scheduling conflict. … Continue reading
Jim Buatti and I have posted this draft on SSRN (forthcoming, Texas Law Review See Also). Here is the abstract: In a pathbreaking 1991 study of congressional overrides, Yale law professor William N. Eskridge found a rise during the 1970s … Continue reading
Simon Lazarus for TNR. … Continue reading
Bill Maurer on textualism, responding in part to my Slate piece, Bad Readers. … Continue reading
Looking forward to digging into Jonathan Adler’s analysis, and I hope Abbe Gluck will respond. … Continue reading
Glen Staszewski has posted this draft on SSRN (Boston University Law Review). Here is the abstract: This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules … Continue reading
Rick posted yesterday on an Arkansas registrar’s decision to cancel the registration of Leslie Rutledge, a candidate for state AG, after it was brought to the registrar’s attention that Ms. Rutledge had been registered in another state. One of the … Continue reading
Oral argument in the Kansas Supreme Court has now completed in the case of Kobach v. Taylor, on the question whether Taylor’s name can be removed from the Kansas U.S. Senate ballot. The issue is especially important with incumbent Republican … Continue reading
Wichita Eagle oral argument preview. … Continue reading
The Kansas Supreme Court has now posted additional filings in the Taylor v. Kobach case. Here are a few observations about the new filings. 1. One of the questions is what Bradley Bryant of Kansas Secretary of State’s office told … Continue reading
Taylor makes essentially that argument in the memorandum supporting the writ of mandamus filed in the KS Supreme Court. I think that’s probably right. What good does it do to give voters the choice of a candidate who has attempted to withdraw and … Continue reading
[Bumping to the top for the start of classes.] [UPDATE: You can now order the book at Amazon, or electronically as a Kindle Book, or directly from the publisher.] I am happy to announce that you can now buy my … Continue reading
Simon Lazarus in TNR: Purposivist disciples may be tempted to seize upon the ACA premium assistance challenges to skewer their philosophical adversaries. Indeed, the day after Judge Griffith’s decision, University of California law professor Richard Hasen put the blame on “unfeeling” … Continue reading
Judge Robert Katzman has written a new book on statutory interpretation for Oxford University Press. Here is the description: In an ideal world, the laws of Congress-known as federal statutes-would always be clearly worded and easily understood by the judges … Continue reading
Read Adam Serwer on the Gruber Obamacare remarks. … Continue reading
Here, at CNN. … Continue reading
There’s a great irony in those who up until yesterday supported the DC Circuit’s strict textualist reading of the ACA now pointing to a statement made by a supporter of the law involved in its drafting as evidence of the … Continue reading
Over at NRO’s Bench Memos, Ed Whelan takes on my recent Slate piece on the conflicting Obamacare decisions issued this week: On Slate, law professor Richard Hasen perceives in the D.C. Circuit and Fourth Circuit rulings on Obamacare exchange subsidies … Continue reading
Here, at Politico. … Continue reading
I have written this new Jurisprudence essay for Slate. It begins: 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 … Continue reading
Velasquez v. Superior Court: While riding his bicycle, Jorge Velasquez, Jr. collided with a pedestrian, seriously injuring her. He was charged with recklessly driving a “vehicle” under Vehicle Code section 23103.1 One section of the code, however, defines “vehicle” in … Continue reading
He writes: It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can … Continue reading
Very important Deborah Widiss piece (Texas Law Review See Also) on statutory overrides of the Supreme Court. Here is the abstract: This paper is an invited response to Professor William N. Eskridge, Jr., and Mr. Matthew R. Christiansen’s recently-released study … Continue reading
Jeff Shesol at The New Yorker. … Continue reading
Damon Root writes on the Chief Justice’s decision in Bond. v. US, analogizing it to the Chief’s decision in the health care case. As I noted the other day, Richard Re saw the avoidance parallels to NAMUDNO. The important point … Continue reading
Amanda Frost writes at SCOTUSBlog about Christiansen and Eskridge, Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011 (Texas Law Review). My earlier coverage is here; and I will be writing a response with Jim Buatti for the Texas Law Review … Continue reading
Jarrod Shobe has posted this draft on SSRN (Columbia Law Review). Here is the abstract: All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in … Continue reading
Whoa: “Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email Saturday to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant … Continue reading
Justice Scalia co-author hires lawyer to determine whether Judge Posner critiques of their book on statutory interpretation have merit. … Continue reading
Back in April I explained why conditions were right, despite great political polarization, for Congress to override the Supreme Court’s statutory decision in Paroline v. US on the right of child pornography victims to obtain restitution. And very quickly now … Continue reading
Eugene Volokh on a case sure to delight statutory interpretation nerds. … Continue reading
Rick Pildes on Paroline and congressional overrides: Initially, the question is whether the Court should try to put Humpty Dumpty back together again: should the Court construct a version of the law that creates a rough approximation of what Congress … Continue reading
Today the Supreme Court decided a statutory interpretation case, Paroline v. U.S. with no easy answer, an unusual cross-ideological divide among the Justices, an interpretation offered by the majority which Adam Liptak rightfully describes as “a new and vague legal … Continue reading