Category Archives: statutory interpretation
Marty Lederman on CJ Roberts’ Pragmatic Statutory Interpretation
Dare not raise Holy Trinity Church, but no need to.
My earlier post on the return of purposivism is here.
King v. Burwell: The Return of “Purpose” in Statutory Interpretation
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
Obamacare Survives Latest Challenge: Read King v. Burwell Decision
Here.
Some analysis to come later.
A Key Thing to Watch if Government Loses at SCOTUS in King v. Burwell
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
“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… Continue reading
“Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say”
Must-read deep dive into legislative drafting of challenged ACA provision by Robert Pear NYT.
“After the Override: An Empirical Analysis of Shadow Precedent”
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
“How to Avoid the Sex-Trafficking Bill’s ‘Surprise’”
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… Continue reading
“Insincere Rules”
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… Continue reading
No Justice Scalia, Congressional Overrides Don’t Happen “All the Time” (Anymore)
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
“Obamacare case shows Congress often misses mark when writing legislation”
Paul Kane writes for WaPo.
Re-Upping My Slate Piece on the Obamacare Case and the Dangers of Mindless Textualism
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… Continue reading