April 24, 2008
New Articles of Note
Miranda McGowan has posted "Do as I Do, not as I say: An Empirical INvestigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, which is on ssrn here. The abstract:
Justice Scalia is one of the only American judges to have formulated a complete methodology of statutory interpretation. He contends that the rule of law requires "[s]tatutory construction to begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." This article presents the results of a study that examined how Justice Scalia's practice of interpreting statutes compares with his theory. Based on a random sample of Justice Scalia's statutory interpretation dissents, this study uncovered the following. First, Justice Scalia entirely suspends textualism in about a quarter of the cases in the study's sample, because he is interpreting a statute that he believes grants the courts common law authority. Second, when Justice Scalia engages in textual analysis, more often than not his presumption that the ordinary meaning of words governs statutory meaning is overcome. He also consults an eclectic set of extrinsic materials - the same broad set of materials that other justices use, with the singular exception of legislative history. Third, purpose analysis lies at the core of Justice Scalia's method, and he considers a statute's purpose about as often as the Court as a whole does. Because Justice Scalia refuses to consult legislative materials, however, his purpose analysis frequently stems from the least formal source of all - his own sense of a statute's purpose or of absurd or anomalous results. This article concludes by observing that compared to ipse dixit purposivism, the evils of legislative history are grossly overstated.
Margaret Lemos has posted "The Other Delegate: Judicially Administered Statues and the Nondelegation Doctrine" here. The abstract:
The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate - the federal judiciary.
This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with respect to agencies, the constitutional principles underlying the doctrine apply with full force to delegations to courts. In principle, then, the nondelegation doctrine extends equally to both of Congress's delegates. In practice, matters are more complicated. Despite judicial rhetoric to the contrary, virtually unlimited delegations to agencies long have been tolerated, even welcomed. To the extent the modern Court has enforced the nondelegation doctrine in the administrative context, it has been through narrow statutory construction rather than constitutional decree. The narrow-construction strategy does not make sense as a means of limiting courts' own discretion, however. Nor do the functional arguments that have been offered in defense of a hands-off attitude toward broad delegations to agencies work when applied to courts. Far from justifying nondelegation law's inattention to courts, considerations of institutional structure and capacity suggest the need for careful evaluation of statutes administered by unelected, generalist judges.
To be sure, the features that set courts apart from agencies also may make them particularly valuable delegates in certain areas of the law. The goal of this Article is not to condemn all delegations to courts, but rather to demonstrate that they warrant more attention than they currently receive. There has been a robust debate about the constitutional permissibility and functional desirability of delegations to agencies. We need to have a similar conversation about delegations to courts.
Gregory Sisk has posted "The Continuing Drift of Federal Sovereign Immunity Jurisprudence" here. The abstract:
With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been emerging. Absolute jurisdictional analysis is being reserved for verifying the existence of a statutory waiver for a general class of claims, while strict construction is more judiciously employed to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. The Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. The Article concludes that the Court should speak more purposively to interpretive approach in the future, if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.
Scott Keller has posted "How Courts Can Protect State Autonomy From Federal Administrative Encroachment " here. The abstract:
Unlike the federalism cases we were used to seeing from the Rehnquist Court, modern federalism cases won't be a fight over the interpretation of the Commerce Clause or the Tenth Amendment, after Gonzales v. Raich, 545 U.S. 1 (2005), refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court is becoming increasingly interested in cases dealing with the intersection of federalism and statutory construction, as it decided two such cases during the October Term 2007 and has granted cert in two other cases for the October Term 2008. Federalism concerns in statutory construction arise most frequently in administrative law, as modern federal agencies produce an enormous amount of laws.
As a result, the hard questions about federalism now appear in administrative law cases. Courts and commentators are becoming wary of the ability of federal agencies to encroach on state autonomy, given the underenforced constitutional norms of federalism and the nondelegation doctrine. The Supreme Court recently examined the intersection of federalism and administrative law in Gonzales v. Oregon, 126 S. Ct. 904 (2006), but the Court adopted an inadequate approach (Chevron Step Zero) to protecting state autonomy from administrative encroachment.
Instead of using Chevron Step Zero to protect federalism in administrative law, courts should expand federalism-based clear statement canons of statutory construction. Specifically, courts should expand the scope of Gregory v. Ashcroft, 501 U.S. 452 (1991), in the administrative law context to adopt a clear statement canon that applies to administrative interpretations made in areas of traditional state regulation. Such a canon finds support in preexisting clear statement canons and the Supreme Court's continued reliance on the "areas of traditional state regulation" dichotomy. This canon would be a direct, effective approach to protecting state autonomy from administrative encroachment.
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