scholarly journals Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade

2018 ◽  
pp. 71
Author(s):  
Nina Mendelson
Keyword(s):  
Supreme Court ◽  
Extensive Study ◽  
Second Order ◽  
State Law ◽  
Statutory Interpretation ◽  
Future Directions ◽  
The Supreme Court ◽  
Congressional Staff ◽  
The Many ◽  
Roberts Court

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained and predictable, supplying Congress with a stable interpretive background. Based on an extensive study tracking the use of over 30 interpretive canons in the first 10 years of the Roberts Court, this Article attempts to contribute evidence to the debate over canons. The data raise substantial questions regarding stability and predictability. Despite a long tradition of use, some canons have essentially disappeared; meanwhile, the Court has created others out of whole cloth. In addition, application is erratic. The Roberts Court Justices have declined to apply even the most widely engaged canons 20–30% or more of the time, often for difficult-to-anticipate reasons; some well-known canons, such as the rule of lenity and the presumption against preemption, were applied roughly at a 50–50 rate. The story is worse in the many cases in which multiple canons are considered. Based on these and other findings, this Article accordingly argues that predictability and stability arguments cannot supply a firm foundation for canon use. The study also reveals troubling mismatches between canons actually in use and congressional staff acceptance of canons. The Article concludes by suggesting some future directions for investigation and reform.

Wyeth v. Levine: Challenging Implied Pre-emption for drugs

2009 ◽  
Vol 37 (3) ◽  
pp. 527-530
Author(s):  
Pooja Nair
Keyword(s):  
Supreme Court ◽  
Drug Administration ◽  
Medical Devices ◽  
Food And Drug Administration ◽  
State Law ◽  
Drug Labeling ◽  
The Supreme Court ◽  
Premarket Approval ◽  
Tort Claims

In March 2009, the Supreme Court held in Wyeth v. Levine that federal drug labeling laws do not pre-empt state tort claims against drug manufacturers. The decision surprised many Court watchers, coming on the heels of a 2008 decision, Riegel v. Medtronic, in which the Court found that the Food, Drug, and Cosmetic Act (FDCA) does pre-empt state-law claims for injuries caused by medical devices that received premarket approval from the Food and Drug Administration. Wyeth dealt an immediate and surprising blow to the pharmaceutical industry’s principal strategy for avoiding tort lawsuits, but failed to clarify the Court’s overall pre-emption jurisprudence.

scholarly journals PENGAKUAN TERHADAP PIHAK NON-ADVOKAT DALAM PEMBERIAN BANTUAN HUKUM (Politik Hukum Bantuan Hukum Dalam Peraturan Perundang-Undangan Di Indonesia)

2017 ◽  
Vol 6 (3) ◽  
pp. 399
Author(s):  
Akmal Adicahya
Keyword(s):  
Supreme Court ◽  
Access To Justice ◽  
State Law ◽  
Legal Aid ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Government ◽  
The Right ◽  
Law Student

Access to justice is everyone rights that have to be fulfilled by the government. The regulation number 16 year 2011 of legal aid is an instrument held by the government to guarantee the right. The regulation allowed the participation of non-advocates to provide the legal aid. Through this policy, government emphasizes that:1) Indonesia is a state law which legal aid is an obliged instrument; 2) the prohibition of non-advocate to participate in legal aid is not relevant due to inadequate amount of advocate and citizen seek for justice (justiciabelen), and the advocate is not widely extended throughout Indonesia; 3) Non-Advocates, especially lecturer and law student are widely spread; 4) there are no procedural law which prohibits non-advocate to provide a legal aid. Those conditions are enough argument for government to strengthen the participation of non-advocates in providing legal aid. Especially for The Supreme Court to revise The Book II of Guidance for Implementing Court’s Job and Administration.Keywords: legal aid, non-advocate, justice

The Origins of the Re Hastings-Bass Rule

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Practical Importance ◽  
Future Application ◽  
Precise Nature ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
The Many ◽  
Court Of Appeal

The present state of the law must now be treated as authoritatively set out by Lord Walker in Pitt v Holt, and to a lesser but still important extent by the earlier judgment of Lloyd LJ in the Court of Appeal in the same case. This chapter, however, is concerned with the earlier development of the Re Hastings-Bass doctrine. Its purpose is to establish the doctrinal legitimacy of the rule in Re Hastings-Bass as an aspect of the English law of trusts. Whilst this is primarily of academic and theoretical concern, in view of the Supreme Court’s reformulation of the law into its present shape, it is also of practical importance. In particular, the future application of the doctrine to novel situations will depend upon understanding the precise nature and scope of the rule propounded by the Supreme Court. That decision cannot simply be divorced from the many decided cases which preceded it, and from its place in the wider compass of the law of trusts.

Impeachment and Removal from Office

2020 ◽  
pp. 147-150
Author(s):  
Danny M. Adkison ◽  
Lisa McNair Palmer
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Elected Officials ◽  
Grand Jury ◽  
State Law ◽  
Chief Justice ◽  
The Supreme Court

This chapter discusses Article VIII of the Oklahoma constitution, which concerns impeachment and removal from office. Section 1 states that “the Governor and other elective state officers, including the Justices of the Supreme Court, shall be liable and subject to impeachment for wilful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude committed while in office.” Moreover, “all elected state officers, including Justices of the Supreme Court and Judges of the Court of Criminal Appeals, shall be automatically suspended from office upon their being declared guilty of a felony by a court of competent jurisdiction.” Two other methods for removing elected officials not mentioned in Section 1 are specified in state law pursuant to Section 2. The first provides for a grand jury to accuse an official and present its findings to a district judge. The second allows the governor to instruct the attorney general to investigate an official and, if official misconduct is found, to institute proceedings in court. Section 3 designates the chief justice of the Oklahoma Supreme Court as the presiding officer in an impeachment trial. Lastly, Section 4 requires senators to take an oath and specifies a two-thirds vote of those present in order to convict.

Social Science in the Courtroom

2021 ◽  
pp. 240-243
Author(s):  
Michael J. Rosenfeld
Keyword(s):  
Social Science ◽  
Supreme Court ◽  
Social Science Research ◽  
Science Research ◽  
Board Of Education ◽  
White Children ◽  
Same Sex Couples ◽  
The Social ◽  
The Supreme Court ◽  
The Many

Chapter 18 describes social science research of the 1940s and 1950s that showed how segregation harmed both minority and majority populations and thereby played a role in the landmark Brown v. Board of Education decision of 1954. Between 1896, when the Supreme Court endorsed segregation in Plessy v. Ferguson to 1954, when the Supreme Court rejected segregation, social science had built a consensus about the many harms and costs that racial segregation imposed on Black and on White children. Like school desegregation, marriage equality’s victories in the courts were built on a social science consensus, specifically the social science consensus that children raised by same-sex couples have good outcomes.

Annulment of Legislation by the Supreme Court

1913 ◽  
Vol 7 (4) ◽  
pp. 541-587 ◽  
Author(s):  
Horace A. Davis
Keyword(s):  
Supreme Court ◽  
United States Supreme Court ◽  
The United States ◽  
State Courts ◽  
Proper Function ◽  
Historical Study ◽  
Political Movements ◽  
The Supreme Court ◽  
The Subject ◽  
The Many

The growing strength of the various political movements for limiting judicial authority over constitutional questions has aroused a new interest in the origin of the courts' power. Wherever the source be found, or however the practice may have developed, the authority now exercised by the United States supreme court does not determine the proper function of state courts in local cases, which is now the chief issue; but its study throws some light on the attitude that each of the three departments of government—legislative, executive and judicial—ought to assume toward the subject of constitutional law, and is of particular interest to the many citizens whose opinion of the new proposals will be more or less favorable as they appear to bring us back nearer to original ideals or to carry us farther away. The historical study is interesting also in showing that our forefathers in their discussions by no means adopted the viewpoint of most of the modern writers—of assuming that whenever a law is declared unconstitutional, the court is always right, and is performing a public service in so deciding.

scholarly journals How Do You Qualify as a Whistleblower Under The Dodd-Frank Act? Blowing the Whistle on a Circuit Split

2018 ◽  
Vol 36 (2) ◽  
pp. 101-130
Author(s):  
Hugo S. W. Farmer
Keyword(s):  
Supreme Court ◽  
Consumer Protection ◽  
Statutory Interpretation ◽  
Wall Street ◽  
Group V ◽  
Consumer Protection Act ◽  
The Supreme Court ◽  
Definition Of

            Recently, a circuit split has arisen with regard to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The circuit split concerns the question of what it takes for an individual to qualify as a “whistleblower” under the terms of the statute. This circuit split is surprising, as the Dodd- Frank Act purports to answer this question itself by providing a definition of this term, a definition which the Fifth Circuit has treated as being conclusive. Nonetheless, the Second and the Ninth Circuits have held that with respect to some, but not all, of the Dodd-Frank Act, this statutory “whistleblower” definition does not apply. Shortly, the Supreme Court will have the opportunity to resolve the matter when it hears an appeal of the Ninth Circuit’s decision in Somers v. Digital Realty Trust Inc. This article provides three broad reasons why the Supreme Court should reject the Second and Ninth Circuits’ interpretations. First, the interpretation endorsed by the Second and Ninth Circuits is the result of a flawed exercise in statutory interpretation that incorrectly applies principles recently set down by the Supreme Court in King v. Burwell, and Utility Air Regulatory Group v. EPA. Secondly, while the Second and Ninth Circuits rejected the Fifth Circuits’ interpretation on the basis that it withholds the protection of the Dodd-Frank Act from auditors and attorneys, the Second and Ninth Circuits’ preferred interpretations also fail to protect auditors and attorneys. Finally, the policy reasons in favor of extending the Dodd-Frank Act’s whistleblower protections to auditors and attorneys are insufficiently strong to warrant departing from the natural meaning of the statutory language at issue.   

scholarly journals THE MANY FACES OF STRICT SCRUTINY: HOW THE SUPREME COURT CHANGES THE RULES IN RACE CASES

2010 ◽  
Vol 72 (1) ◽  
Author(s):  
Evan Gerstmann ◽  
Christopher Shortell
Keyword(s):  
Affirmative Action ◽  
Supreme Court ◽  
Racial Discrimination ◽  
Racial Profiling ◽  
Single Test ◽  
Strict Scrutiny ◽  
The Supreme Court ◽  
Different Types ◽  
The Government ◽  
The Many

In this paper, we argue that there is no single test called strict scrutiny when the Court considers claims of racial discrimination. In fact, the Court changes the rules depending on why and how the government is using race. By examining racial redistricting, remedial affirmative action, and diversity-based affirmative action cases, we show how the Court uses at least three verydifferent versions of strict scrutiny. The costs of maintaining the fiction of unitary strict scrutiny is high. In the area of racial profiling, for example, courts refuse to apply strict scrutiny for fear that it will either overly hamper police or will weaken strict scrutiny in other areas of racial discrimination. An open acknowledgment that the Court is already using different standards of analysis for different types of racial discrimination would allow courts to craft appropriate standards without fear of diminishing protections in other areas.

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