Abbe R. Gluck
Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation
For the first time in years, in the Purdue Pharma opioids litigation, the Court is reviewing an unorthodox bankruptcy maneuver aimed at securing global settlement. This Essay critiques corporate defendants’ increasingly common turn to bankruptcy to shut down, or avoid altogether, complex civil litigation and the public goods it generates.
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.
Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond
121 Yale L.J. 534 (2011). State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law. We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s decisions to delegate implementation duties to states should affect how ambiguous statutes should be interpreted....
Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine
120 Yale L.J. 1898 (2011). Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though state and federal courts constantly interpret one another’s laws. What’s more, exploring this application of Erie reveals that one of...
Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine
120 Yale L.J. 1898 (2011). Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though state and federal courts constantly interpret one another’s laws. What’s more, exploring this application of Erie reveals that...
The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism
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...