119 Yale L.J. 1750 (2010).
This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis—the practice of giving precedential effect to judicial statements about methodology—is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology—what this Article terms “modified textualism”—a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself—whether it is “law” or something “less”—remains entirely unresolved.
119 Yale L.J. 1864 (2010).
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their essays, Professors Alafair Burke, Alice Ristroph, and Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the deficiencies of the proposed alternatives. While we appreciate and admire the efforts of our critics to advance this important conversation, we hope this Essay will illuminate why the normative framework of Privilege or Punish remains a more helpful structure to policymakers assessing how family status should intersect with the criminal law within a liberal democracy such as our own.
119 Yale L.J. 1904 (2010).
119 Yale L.J. 1948 (2010).
119 Yale L.J. 1992 (2010).
Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance.
This Note makes a two-part argument. First, the pocket trigger should be used to alleviate the NAMUDNO Court’s anxiety over the coverage formula’s differential treatment of the states. The Justice Department and civil rights groups should build off of the handful of successful bail-ins and redefine the preclearance regime through litigation. Second, the pocket trigger provides a model for a revised VRA. The pocket trigger is more likely to survive the congruence and proportionality test because it replaces an outdated coverage formula with a perfectly tailored coverage mechanism—a constitutional trigger. It also sidesteps the political difficulties in designing a new coverage formula. The pocket trigger has the potential to create dynamic preclearance: a flexible coverage regime that utilizes targeted preclearance and sunset dates. This Note concludes by proposing possible amendments to the pocket trigger, such as adding an effects test or delineating certain violations that automatically trigger preclearance.
119 Yale L.J. 2040 (2010).
This Note analyzes the Delaware Chancery Court’s recent decision in Mercier v. Inter-Tel (Delaware), Inc., in which the court upheld against a Blasius challenge the Inter-Tel board’s decision to postpone its imminent special meeting in order to prevent shareholders from voting down a merger with Mitel. It argues that Inter-Tel represents an attempt to limit Blasius’s compelling justification standard for board action interfering with the shareholder franchise to cases involving board entrenchment, and that such a limitation is misguided because it ignores the potential agency costs associated with a decision to postpone an imminent vote on a transaction. The Note concludes that outside of the entrenchment context Blasius should remain a default rule that shareholders can opt out of ex ante.
119 Yale L.J. 2096 (2010).
This Note argues that government agencies should receive substantial deference when they interpret statutes informally under the standard of Skidmore v. Swift & Co. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. Current legal scholarship, however, reflects an outdated view of accountability that does not reflect the insights of modern political science. Modern political scientists emphasize that agency officials are held accountable through a variety of mechanisms beyond formalistic procedures or direct electoral ties to the populace. The Note correspondingly offers an innovative justification as well as a fresh critique of a substantial body of cases implementing the Skidmore standard. Furthermore, this Note suggests a model for how courts should handle informal agency interpretations of statutes. Courts could compare their treatment of such decisions to the familiar standard of “persuasive precedent.” This proposed Skidmore standard is largely consistent with recent Supreme Court precedent, though the Court should still benefit from clarification of the doctrine.
119 Yale L.J. 2143 (2010).