Statutory Interpretation
A Textualist Response to Two Texts: Positive-Law Codification and Interpreting Section 1983
Textualists have yet to explain how to interpret codified positive-law text, which is revised by bureaucrats then enacted by Congress, where it differs from original text. This Note’s proposed solution is the “two texts canon.” When applied to Section 1983, the two texts canon demands that qualified immunity be abolished.
Refining Constitutional Torts
Constitutional torts allow victims of governmental misconduct to seek redress. But the doctrinal regime is in disarray because it vacillates between two conceptions of constitutional rights: rights that “nullify” changes to subconstitutional law and rights that impose “duties” on officers. The Feature defends a regime that embraces constitutional duties.
The New Standing Doctrine, Judicial Federalism, and the Problem of Forumless Claims
The Supreme Court’s new standing cases have further narrowed the class of claims justiciable in federal court. Some state courts have followed suit, leaving valid federal claims without any viable forum. We argue that the Supremacy Clause requires state courts to vindicate federal rights by hearing some of these claims.
Externalist Statutory Interpretation
This Article introduces a new, historically grounded “externalist” perspective for understanding the possibilities and limits of statutory interpretation as a tool for democratic participation and collective power building.
Rationalizing Absurdity
Critiqued as a blank check for judicial intervention, the absurdity canon has been all but abandoned by modern textualists. But its total dismissal is unwarranted. By dissecting absurdity’s multiple meanings, this Note reframes and justifies the absurdity canon in terms of constitutional values inherent in the Equal Protection Clause.
Deplatforming
This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American tradition has favored reasonable deplatforming.
Statutory Structure
Interpreting ambiguous statutory provisions in light of the “structure,” “scheme,” or “plan” of the statute is a popular, yet understudied, interpretive tool often deployed by the Supreme Court. This Note categorizes the various types of structural arguments the Court has used and evaluates their methodological compatibility with textualism and purposivism.
Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court
Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably explicit, using language absent from the ACA.
Law Within Congress
What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.
Fidelity and Construction
Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.
The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today
This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response.
Judging Ordinary Meaning
When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. This Article proposes to import those methods into statutory interpretation.
Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections
In light of Hively, Evans, and Zarda, this Feature argues that Title VII’s bar to discrimination “because of sex” applies to LGBT individuals. This interpretation follows from Title VII's ordinary meaning, particularly in light of its purpose to entrench a merit-based workplace, in addition to its statutory history.
Uncovering the Codifier’s Canon: How Codification Informs Interpretation
The orthodox view is that statutory captions and titles should not inform interpretation. However, a more nuanced method distinguishes between Congress’s codification choices and those that the Office of the Law Revision Council makes. While the latter are rightly disregarded, judges should use the former to determine congressional intent.
A Resurgence of Secret Law
This much should be uncontroversial: the public should have access to the law and to the government’s interpretations of it. This principle is an imperative not just of due process but also of republican governance. The Freedom of Information Act (FOIA), which the Eighty-ninth Congress enacted half a century ago, included a provision requiring federal agencies to disclose their effective law and policy. A decade after Congress enacted the FOIA, the Supreme Court’s unanimous decision in NLRB v. Sears, Roebuck & Co. construed this provision to require federal agencies to publish their “working law.” The Court explained that “the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted,” and it held that the FOIA requires “[t]hese reasons, if expressed within the agency,” to be disclosed. In subsequent cases, lower courts enforced this rule, repeatedly requiring federal agencies to publish legal memoranda and opinions interpreting or applying the law.