Habeas, History, and Hermeneutics

64 Ariz. L. Rev. 505 (2022)

Supreme Court Justices Clarence Thomas and Neil Gorsuch recently  proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides valuable lessons in the proper uses of historical materials and in the hermeneutics of statutory interpretation.  Justice Kagan cited this article twice in her opinion in Brown v. Davenport, 142 S. Ct. 1510, 1534 nn.2-3 (2022) (Kagan, J., dissenting).

The ACUS Sourcebook of Federal Judicial Review Statutes

(GPO 2022)

The United States Code contains hundreds of statutes providing for judicial review of administrative agency action.  This Sourcebook, commissioned by the Administrative Conference of the United States, surveys all such statutes, reports on their characteristics, and make some suggestions to Congress based on the information revealed by the survey.

A Law Professor’s Guide to Parliamentary Procedure

70 J. Leg. Ed. 26 (2020)

Most law professors are surprisingly deficient in their knowledge of parliamentary procedure.  This essay sets forth a brief guide to parliamentary procedure that contains enough to get the reader through a basic faculty meeting or other meeting governed by the rules of parliamentary procedure.

The Constitutional Case for Chevron Deference

71 Vand. L. Rev. 937 (2018)

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set by the possible meanings of the statute.

The Legacy of Justice Scalia and His Textualist Ideal

85 Geo. Wash. L. Rev. 857 (2017)

The late Justice Antonin Scalia reshaped statutory interpretation. Thanks to him, the Supreme Court has become far more textualist. Nonetheless, Justice Scalia never persuaded the Court to adopt his textualist ideal that “the text is the law.” In some cases, the Court still gives greater weight to other indicators of statutory meaning, such as perceived statutory purpose. Fundamental institutional features of courts and legislatures—particularly the fact that legislatures act generally and in advance, whereas courts resolve particular questions at the moment a statute is applied—justify this rejection of the textualist ideal.

ACUS and Suits Against Government

83 Geo. Wash. L. Rev. 1642 (2015) (symposium)

The Administrative Conference of the United States (“ACUS”) has played an important role in improving the system of lawsuits against the federal government. ACUS should continue to play this role, for which it is uniquely well suited. Because it does not litigate, ACUS is free from the pressure to win particular cases and can focus on improving the overall system.

Injury in Fact and the Structure of Legal Revolutions

68 Vand. L. Rev. En Banc 207 (2015)

I comment on the pending Supreme Court case of Spokeo, Inc. v. Robins, which tests whether a plaintiff can have standing based on the violation of a right conferred by Congress, even if a court does not believe the plaintiff has sufferd an injury in fact. I observe that the Supreme Court has long held that standing can be based on the violation of legal rights, and indeed, traditionally, that was the only basis for standing. Because the goal of standing doctrine is understood as maintaining tradition, plaintiffs should continue to have standing if they satisfy this traditional test.

Symmetries—and Asymmetries—Between Theories of Statutory Interpretation

99 Corn. L. Rev. Online 182 (2014)

I comment on Richard Fallon’s article, Three Symmetries Between Textualist and Purposivist Theories of Statutory Interpretation—and the Irreducible Roles of Values and Judgment Within Both, 99 Corn. L. Rev. 685 (2014). I agree with Fallon’s observation that some degree of normative value judgment is an inevitable part of the interpretive process, even for textualists. I explain, however, that there remains a core distinction between textualism and other methods that causes textualism to become progressively radicalized, as I previously explained in The Inexorable Radicalization of Textualism.

What If the Universal Injury-in-fact Test Already Is Normative?

65 Ala. L. Rev. 403 (2013) (symposium)

William Fletcher’s The Structure of Standing criticized current law for purporting to make a plaintiff’s standing to sue turn on a universal, non-normative, “factual” inquiry. However, at least one prominent proponent of standing doctrine, Justice Scalia, asserts a normative theory that claims to account for the universal “injury-in-fact” component of standing, and particularly for its requirement that the plaintiff be differentiated from the public at large. Scalia asserts that courts should redress only injuries that fall differentially on particular plaintiffs because the political process will adequately redress widespread injuries. In order to complete Fletcher’s theory, it is necessary to refute Scalia’s argument. The refutation is that Scalia overlooks the collective action problems that may make majoritarian remedies impossible if a violation of law works a small injury to the populace at large while benefitting a concentrated group. Justice Scalia’s asserted normative reasons for standing doctrine’s universal requirement of differentiation therefore fail, and Fletcher’s call for a normative, claim-by-claim approach to standing doctrine is therefore strengthened.

Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500

65 Ala. L. Rev. 1 (2013)

Plaintiffs suing the United States face a little-known obstacle to justice: 28 U.S.C. § 1500. This statute prohibits the United States Court of Federal Claims from exercising jurisdiction over a claim if the plaintiff has the same claim pending in another court. This apparently sensible rule causes considerable trouble because a “claim” is understood to include all claims based on the same operative facts, and Congress has required that certain types of claims against the United States must go to different courts. Therefore, a plaintiff with multiple claims against the United States may neither be able to bring the claims together in one case nor split them into separate cases. Section 1500 may effectively compel such a plaintiff to pursue only one claim and abandon the others. This unjust result is contrary to fundamental principles of modern civil procedure, which allow a plaintiff to pursue multiple claims against a defendant. Worse, it serves no good purpose. This Article argues that Congress should repeal § 1500 to provide justice to plaintiffs with multiple claims against the United States.

The REINS Act and the Struggle to Control Agency Rulemaking

16 NYU J. Legis. & Pub. Pol’y 131 (2013)

The REINS Act (“Regulations From the Executive in Need of Scrutiny”), which passed the House of Representatives in December 2011, would revolutionize our system of government by requiring that all major rules promulgated by federal agencies receive congressional approval before becoming effective. The tremendous significance of the REINS Act has led to fierce debate about both its constitutionality and its wisdom. This article explains that the REINS Act would be perfectly constitutional. Those who challenge its constitutionality correctly point out that the Act would diminish the power of the President and add to the power of Congress. The critical question, however, is not how the Act would alter those powers relative to where they stand now, but whether the Act would impermissibly grant Congress powers beyond those provided by the Constitution. The Act would not do so because it would merely reclaim for Congress powers that Congress was not required to delegate in the first place. This article also addresses the REINS Act from a policy perspective. While the Act would have the virtue of implementing the constitutional ideal that the legislature makes the laws, it would be hopelessly impractical. Congress lacks the time and expertise to vote responsibly on every major regulation. Thus, while the Act would be constitutional, it would be bad policy.

The Institutional Case for Judicial Review

97 Iowa L. Rev. 1147 (2012)

The “popular constitutionalism” movement has revived the debate over judicial review. Popular constitutionalists have attacked judicial review as being illegitimate in a democracy or inconsistent with original intent, and they have argued that the Constitution should be enforced through popular, majoritarian means, such as elections and legislative agitation. This Article shows in response that the judicial process has institutional characteristics that make judicial review the superior method of constitutional enforcement. Prior literature has focused on just one such institutional characteristic: the political insulation of judges. This Article, by contrast, shows that the case for judicial review rests on a whole range of institutional distinctions among the judicial, electoral, and legislative processes. Most important among these distinctions are that the judicial process is focused (it resolves issues discretely, without entangling them with other issues), whereas the electoral process is unfocused; and the judicial process is mandatory (a complainant can invoke it as of right), whereas the legislative process is discretionary. The full range of its distinctive institutional characteristics, not just the political insulation of judges, normatively justifies judicial review.

Naive Textualism in Patent Law

76 Brook. L. Rev. 1019 (2011) (symposium))

Textualist interpreters are becoming increasingly radical as they gradually realize that the accommodations they previously allowed in order to reach sensible results are inconsistent with fundamental textualist premises. This trend has resulted in the creation of a “naive textualism,” which is distinguished by its naive attitude that statutes can be best understood by simply looking up their words in a dictionary, applying a few canons of statutory construction, and eschewing other considerations. The Supreme Court recently provided an excellent example of naive textualism in the field of patent law. For decades, patent law was a paradigm of richly contextualized statutory interpretaiton, but in a recent case the Court looked to little more than the dictionary in deciding fundamentally important questions of patent law. This essay outlines the Court’s shift from a richly contextual approach to a naively textualist approach to statutory interpretation in patent law and discusses why courts should avoid naive textualism.

The Inexorable Radicalization of Textualism

158 U. Pa. L. Rev. 117 (2009)

A new wave of scholarship in statutory interpretation asserts that textualism, intentionalism, and purposivism are not that different. The new “accommodationist” scholars claim that the rival methods have moderated themselves to the point where they have converged.
In fact, this Article shows, textualism differs fundamentally from intentionalism and purposivism, and the gap between them will only get wider with time. A two-part mechanism produces this result: First, textualism’s prime directive—the formalist axiom that statutory text is the law—fundamentally distinguishes textualism from other interpretive methods. Second, the formalist axiom has an inexorable, expansionist logic that causes the gap between textualism and other methods to grow wider as the logical implications of the axiom are worked out. Textualists gradually realize that their axiom compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together.

Textualism is therefore doomed to become more radical and unworkable as the implications of its formalist axiom become better understood. Nor can textualism abandon its axiom, because, if it did, it would cease to be textualism. Intentionalism and purposivism, by contrast, are less dogmatic and are better positioned to absorb the best lessons of rival methods without being untrue to their core principles. Intentionalism and purposivism will, therefore, ultimately win the interpretation wars.

Law and Longitude

84 Tul. L. Rev. 1 (2009)

The story of the eighteenth-century quest to “find the longitude” is an epic tale that blends science with law. The problem of determining longitude while at sea was so important that the British Parliament offered a large cash prize for a solution and created an administrative agency, the Board of Longitude, to determine the winner. The generally popular view is that the Board of Longitude cheated John Harrison, an inventor, out of the great longitude prize.

This article examines the longitude story from a legal perspective. The article considers how a court might rule on the dispute between Harrison and the Board of Longitude. The article suggests that the popular account of the dispute is unfair to the Board. The Board gave a reasonable interpretation to the statute creating the longitude prize and was not improperly biased against Harrison’s method of solving the longitude problem. The article concludes with some lessons the longitude story offers for modern intellectual property and administrative law.

Guardians of the Background Principles

2009 Mich. State L. Rev. 123 (symposium)

The debate over statutory interpretation often breaks down into a battle among textualists, intentionalists, and purposivists. But another consideration in statutory interpretation that is distinct from all three is the degree of importance to be given to substantive background principles of law. This essay explores the potential for use of these “field-specific canons of construction” by administrative agencies. The essay concludes that the institutional characteristics of agencies, particularly their specialized expertise, puts them in a particularly good position to discern and utilize field-specific background principles as a tool of statutory construction.

Judicial Interpretation in the Cost-Benefit Crucible

92 Minn. L. Rev. 387 (2007)

Professor Adrian Vermeule’s new book, Judging Under Uncertainty, argues that while no one can empirically determine whether any net benefits arise from judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text, such interpretive methods do impose substantial costs. Vermeule concludes, therefore, that courts should discard such interpretive methods. This article suggests, first, that the extent of the costs incurred as a result of applying interpretive methods other than simply enforcing plain text is far from clear. The article also suggests that it is uncertain whether discarding such methods would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule’s theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that produces absurd results. Finally, the article argues that there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule’s interpretive theory. 

A Theory of Justiciability

86 Tex. L. Rev. 73 (2007)

Article III justiciability requirement present a critical paradox. Most provisions of the Constitution have a readily discernible, generally agreed-upon purpose. The justiciability requirements, however, lack this quality. Scholars and courts have proposed many purposes for these requirements, but none has achieved general acceptance, and most make little sense in light of what justiciability actually does. This Article examines and criticizes alleged purposes of the justiciability requirements. After establishing that justiciability doctrines, as currently enforced, lack any clear purpose, the Article suggests that courts should reform them in light of such purposes as they can properly fulfill. Under such a reformed doctrine, courts would relax the rule against advisory opinions and greatly reform the doctrines of standing and mootness, so as to allow judicial resolution of legal questions when necessary to restrain unlawful government action. Such a reformed doctrine would be consistent with the limited judicial role in a democratic society. The limits of the judicial role are properly defined by the substance of judicial action, not by limits on the procedural circumstances in which it can take place.

Bobblehead Justice

10 Green Bag 2d 405 (2007)

The Green Bag produces and distributes a much-celebrated series of bobblehead Supreme Court Justice dolls without getting permission from the Justices depicted. Is this practice legal? The Green Bag reprints an exam question I once posed based on this issue, with my model answer.

Political Questions and Political Remedies

chapter in The Political Question Doctrine and the Supreme Court of the United States (B. Cain & N. Sabbah, eds.) (2007)

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy – they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always represent a package of positions on many issues, so that voters do not actually have an opportunity to vote for or against a particular, allegedly unconstitutional action. The judicial process produces reasons for its decisions; the electoral process produces only an inscrutable result, so that even if voters managed to defeat a candidate because of unconstitutional action, no one could really know it. The judicial process operates within a system of precedent; political battles may have to be fought afresh each election cycle. The judicial process is mandatory; legislatures may choose to ignore political agitation. Finally, the judicial process operates according to law; the political and electoral processes are majoritarian and are not likely to be good vehicles for enforcing constraints on majoritarianism.

These differences between the judicial, political, and electoral processes demonstrate the error of arguing that the political and electoral processes provide an adequate substitute for a judicial remedy. They also show that the political insulation of judges, although very important, is only one factor supporting the institution of judicial review. Judicial review also rests on the distinctive features of the judicial process: that it is focused, that it is mandatory, that it articulates norms explicitly, and that it operates within a system of precedent. Defenders of the political question doctrine must explain not only why we should entrust constitutional questions to officials not insulated from politics, but why we should entrust them to a process lacking these other, vital features of judicial review.

The Polymorphic Principle and the Judicial Role in Statutory Interpretation

84 Tex. L. Rev. 339 (2005)

Can a single term in a single statutory provision ever have different meanings in different cases? In Clark v. Martinez, 125 S. Ct. 716 (2005), the Supreme Court said that that could never happen — that such an interpretive approach would be “novel” and “dangerous.” The Court is wrong on both counts.  Numerous cases, this article shows, have applied the “polymorphic principle” that a single phrase in a single statutory provision may have multiple meanings. Not only is the practice not dangerous, it fits well with standard interpretive principles. Martinez, the article suggests, represents a part of Justice Scalia’s long-term campaign to limit judicial choice. The article attempts to show that a mechanical view of the judicial role is inappropriate. Courts should continue to exercise their appropriate role of making judicious choices in statutory interpretation, a role that will involve continued use of the polymorphic principle in appropriate cases.

A Short Note on the Placement of Adverbs

56 J. Leg. Ed. 61 (2006)

Some law review authors seem to imagine that there is a grammatical rule against “splitting” compound verbs with an adverb — that one may not write “the Court has never held,” but must instead write “the Court never has held.” Through quotations from good authors and citation to grammatical authorities, this essay demonstrates that there is no such rule. The essay calls upon authors to free themselves from enslavement by an imaginary rule; such enslavement seems particularly inappropriate to those trained in critical thinking about rules.

Zone of Interests

92 Geo. L.J. 317 (2004)

The “zone of interests” doctrine in standing law demands that a plaintiff seeking judicial review of federal agency action have suffered an injury that is within the “zone of interests” of the statute allegedly violated. The Supreme Court’s cases implement two contradictory rules regarding how to apply this test: one demands that a plaintiff show that Congress intended the statute at issue to benefit persons such as the plaintiff; the other requires only that a plaintiff “have” an interest that a statute seeks to serve, which is effectively equivalent to eliminating the zone of interests test entirely and requiring only that a plaintiff have suffered an injury in fact. This article calls upon the Court to apply a uniform test and recommends adoption of the open apporach that would permit all injured parties to seek judicial review of agency action.

Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment

52 Duke L.J. 1167 (2003)

States normally enjoy immunity from suit by private parties, but they may waive this immunity. The Supreme Court’s steady contraction of other exceptions to the rule of state sovereign immunity has renewed interest in the previously little-discussed possibilities of waiver. This Article explores the boundaries of waiver doctrine.

This Article shows that, prior to 1945, the Supreme Court–even as it enforced a broad, substantive rule of state sovereign immunity–applied a sensible doctrine of waiver that balanced the interests of states with those of private parties and the federal judicial system. The Court’s traditional doctrine treated state sovereign immunity like the defense of personal jurisdiction. Failure to assert immunity in a timely fashion waived the immunity defense. This rule prevented unfair gamesmanship.

Beginning in 1945, the traditional rules concerning waiver of state sovereign immunity got swept away by the overall ideological tide of state sovereign immunity doctrine. The immunity became so important that it overrode all other considerations, including the need to run the federal judicial system in a sensible way. The new rules of waiver permitted states to abuse their immunity and waste federal judicial resources by litigating the merits of a case while holding an immunity defense in reserve.

The Supreme Court’s most recent decisions suggest that the Court has returned to its traditional rules concerning waiver. The Court should make clear that it has fully reinstated the traditional, sensible, non-ideologized rules of waiver. Such rules respect the states’ prerogative of refusing to be sued in a federal forum, while at the same time requiring states to assert their prerogative in an orderly way that respects the needs of the federal judicial system.

What Statutory Drafting Errors Teach Us About Statutory Interpretation

69 Geo. Wash. L. Rev. 309 (2001)

Statutory drafting errors create a clash between “plain statutory text” and the desire of courts to reach just and sensible results in the cases before them. Such errors present a particularly challenging problem for the textualist approach to statutory interpretation: textualists must either apply statutory text notwithstanding any errors, thereby reaching foolish results, or abandon the fundamental tenet of their theory, namely, that statutory text is the law and must be observed.

This Article proposes a method of statutory interpretation that permits judicial departure from statutory text in appropriate cases, while still constraining courts and not permitting them to make such departures anytime judges feel that disregarding statutory text would be a good idea. The method demands that courts give statutory text a meaning that is most in keeping with judicially discoverable background principles that undergird the relevant area of law.

The Use of Legislative History in a System of Separated Powers

53 Vand. L. Rev. 1457 (2000)

Professor John Manning has argued that judicial reliance on legislative history violates the constitutional rule barring congressional self-delegation. This Article suggests that Manning is incorrect, because a statute’s legislative history already exists at the time of the statute’s passage. Delegation is inherenly forward-looking; judicial use of legislative history effectively amounts to saying that Congress incorporates such history by reference when it passes statutes. Incorporation by reference is permitted and does not violate any nondelegation doctrines.

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