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February 3, 2007


Bush Wants House Dems to Take his Domestic Agenda Seriously. The Washington Post reports here on Bush's different approach on domestic issues from Iraq.

Louisiana Immigration-Related Statute Under Fire. A statute that lets the police arrest folk during traffic stops who can't prove their here legally is being criticized, as you can read here.

The Ostensibly-Moot Wire-Tapping Case Marches On. You can read about oral argument here. It makes for an interesting concept: I suppose the party asserting mootness has the burden to prove it, which could eventually make the related litigation, and forthcoming litigation, over this statute interesting.

Will the Advertising Gurus in Boston be Convicted? Okay, they're not the brightest bulbs on the planet. Were they criminally liable? Read about it here.

February 3, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack

February 1, 2007

Florida Appellate Court Certifies Questions Implicating Insurance of Hurricane Damage

A Florida appellate court issued Florida Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823 (Fla. App. 2006), in October 2006, but in December issued another opinion certifying questions on the statute's meaning for the Florida Supreme Court.  The policy excluded damage caused primarily by flooding, and most of the damage was from flooding, but the court put the insurer on the hook for the full loss.  Along the way, it interpreted Florida's "Valued Policy" statute, which are quite common. The certified question tells the story of the stakes:


February 1, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack

January 31, 2007

Top Ten To-Do's of State Legislatures

There's an interesting article here from the National Conference of State Legislatures on what's on the legislative agendas nationwide.

January 31, 2007 | Permalink | Comments (0) | TrackBack

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 | Comments (0)

January 29, 2007

Tid Bits

Earmarks to be Clipped? The Dems say they're going to cut in half the Republican's awful habit of putting bridges where no one lives, and spending money for things that no one needs. Right. And if you believe that, I've got an Alaskan Bridge I'd like to sell you. Don't discard me yet -- bridge apparently links the mainland to some land owned by the Republican Senator from Alaska, so I predict good things for you! But read here for the promises being made.

Mental Health Exception to Late Term Abortion Ban Examined. There's a piece here that those of you interested in this on-going debate may find of note.

Episcopal Split Raises Statutory Issues. In case you haven't heard several diocese of the Episcopal church have split off. Who owns what? This article discusses those issues, both the internal ones and the statutory and legal issues.

An Comparison of International Mortgage Regulation. This article was just sort of interesting - not interpretation but comparative law, but still probably of interest to some of you.

Interested in Clarence Thomas? There's an article here. I'll be honest, I agree that Thomas is no one's follower, but he's no one's leader either. The number of times he's the lone dissenter, giving opinions that border on frightening (e.g., the torture memo cases), grows.

Other States Imposing Death-Penalty Moratoriums, but Not Virginia. Virginia is for lovers of the death penalty might be the new revised motto. There's an article here about the legislature expanding availability of death sentences with a governor who does not see it their way.

January 29, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack

Patent Claims as Statutes?

One of the things that intrigues me is the oft-made comparison between patent claims (invention patents, not land patents), and statutes. Two students and I are writing an article that I'm about to get elbows-deep in, about the validity of the comparison and, if so, what we can learn from it. I realize it's the intersection of two already-obscure, seldom-travelled roads, but if you have thoughts about it and want to share, please do so, here or e-mail me.

January 29, 2007 in Current Affairs | Permalink | Comments (2) | TrackBack