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January 31, 2007

New Articles of Interest

These are on SSRN:

Robin Kundis Craig, Administrative Law in the US Supreme Court, 2004-2006: Trends, Cases, and Unexploded Bombshells (Aug. 11, 2006). Here's the abstract:

It provides readers with a comprehensive review of administrative-law-related decisions from the U.S. Supreme Court in its 2004-2005 and 2005-2006 terms.

First, the article examines three trends in the U.S. Supreme Court's federal administrative law jurisprudence going into the 2004-2005 term: (1) limited interpretation of the federal Administrative Procedure Act (APA); (2) limiting Chevron deference; and (3) federalism and the role of state authority in federal administrative law. Second, the article provides a comprehensive review of Supreme Court decisions from October 2004 through June 2006 for administrative law practitioners. Finally, the article identifies two unexploded bombshells in administrative law jurisprudence and four cases to watch during the 2006-2007 Supreme Court term.

Julian Ku and John C. Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch (Jan. 2007). Here's the abstract:

The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference.

In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. If followed in the future, the Hamdan Court's refusal to give deference to the executive branch and to require a congressional clear statement prior to any executive action will further disrupt the traditional system of political cooperation between Congress and the President in the conduct of wars. It will raise the transaction costs for policymaking in wartime without any significant benefit and potentially at large cost. Congress's recent enactment of the Military Commission Act of 2006 may be understood as an attempt to prevent future courts from applying Hamdan's new clear statement rule by strictly limiting judicial review of executive wartime decisions.

Ted Sampsell-Jones, Reviving Saucier: Prospective Interpretations of Criminal Laws. Here's the abstract:

This article proposes a new framework for the criminal law's fair warning requirement. When adjudicating fair warning claims, courts should use the structure established by Saucier v. Katz for qualified immunity cases. In Saucier, the Supreme Court held that courts reviewing qualified immunity claims must first rule on the substantive constitutional issue, and only then proceed to the remedial ruling. The Saucier framework was intended to promote elaboration and clarification of constitutional norms while still protecting the ideal of fair warning.

Saucier offers an elegant solution for the criminal law's embattled fair warning doctrines. Importing Saucier would decouple questions of statutory interpretation from questions of notice. Importing Saucier would make the remedy for fair warning violations more commensurate with the doctrine's stated goals. Most controversially, importing Saucier would allow courts to issue rulings with prospective effect. Although these changes sound radical, the new framework is actually more moderate than the current fair warning doctrine, and the crossover application of Saucier already finds implicit support in Supreme Court doctrine. A fair warning requirement built around Saucier would be better than the fair warning requirement we have now

Torben Spaak, Relativism in Legal Thinking: Stanley Fish and the Concept of an Interpretive Community (Apr. 2006). Here's the abstract:

Relativistic theories and arguments are fairly common in legal thinking. A case in point is Stanley Fish's theory of interpretation, which applies to statutes and constitutions as well as to novels and poems. Fish holds, inter alia, (i) that an interpretation of a statute, a poem, or some other text can be true or valid only in light of the interpretive strategies that define an interpretive community, and (ii) that no set of interpretive strategies (and therefore no interpretation) is truer or more valid than any other. In this article, I discuss these claims critically and argue that the very idea of an interpretive community is more or less unintelligible, and that in any case Fish's theory is self-refuting.

I begin with a few words about the methods and techniques of statutory interpretation(Section 2). I proceed by introducing Fish's theory of interpretation, giving special consideration to some difficulties in Fish's account of the concept of an interpretive community (Sections 3-4). I then introduce two types of relativism, cognitive and moral (Section 5), and argue that Fish's theory asserts cognitive relativism in the shape of conceptual relativism and relativism about truth (Section 6). Having done that, I consider Donald Davidson's well-known objection to alternative conceptual schemes (Section 7) as well as the popular charge that relativism about truth is self-refuting (Section 8).

January 31, 2007 in Current Affairs | Permalink

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