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 expl…
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 statut…
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 …
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 s…
State Legislative Drafting Manuals and Statutory Interpretation
Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manua…
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 …
How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes
This Note advocates a new approach to determining the severability of long, complex omnibus statutes. It first examines the legal basis for the Supreme Court’s current approach to severability, outlined in the three severability principles of Alaska Airlines, Inc. v. Brock. The …
Googling for Meaning: Statutory Interpretation in the Digital Age
Dictionary use has become a common practice in modern statutory interpretation at the Supreme Court.1 With the rise of the “new textualism,”2 Justices increasingly rely on dictionaries to shed light on the plain meaning of statutes—that is, the understanding that an ordinary Engli…
Statutory Ambiguity in King v. Burwell: Time for a Categorical Chevron Rule
Introduction The fate of the Affordable Care Act1 (ACA) may turn on the precise meaning of five words tucked into 26 U.S.C. § 36B(b)(2)(A), a once-obscure provision of the law under which tax subsidies are available for “qualified health plans . . . which were enrolled in through an exc…
Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality
Introduction Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme Court struck down bans on interracial marriage.1 This Term, the Court seems poised to further expand marriage equality by holding that same-sex couples, too, are guaranteed the constitutional right to mar…
How To Think About Law as Morality: A Comment on Greenberg and Hershovitz
Introduction In philosophy, we can sometimes hope to make progress just by looking at old issues in new ways. The hope is that we might see familiar facts and controversies differently and understand them better for it. In their recent Essays, Mark Greenberg and Scott Hershovitz make the …
Claim Construction or Statutory Construction?: A Response to Chiang & Solum
Introduction “Claim construction” is the process by which a court determines the meaning of a patent’s claims—a process that in turn determines the scope of the covered invention. This process is extremely important because a court must determine what the patent covers before it ca…
Ritchie v. Rupe and the Future of Shareholder Oppression
In 1988, the Texas Court of Appeals held in Davis v. Sheerin that minority shareholders in close corporations are entitled to a buy-out of their shares if they are “oppressed” by the majority shareholders.1 Davis synthesized other states’ case law in order to arrive at a two-part test …
Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA
In late 2009 and early 2010, the Environmental Protection Agency promulgated a series of final agency actions that operate together to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). Under some CAA programs, sources of pollution are required to obtain permits based on …
Hobby Lobby and the Dictionary Act
Before the end of this month, the Supreme Court will decide Burwell v. Hobby Lobby Stores, Inc.1 and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies wh…
Uniformity and Integrity in Immigration Law: Lessons from the Decisions of Justice (and Judge) Sotomayor
Though courts and scholars emphasize the importance of uniformity in the interpretation and application of federal immigration law, systemic complexity makes its achievement elusive. In the immigration opinions she has drafted to date on the Supreme Court, as well as in her extensive work reviewing …
Section 5 as Simulacrum
Professor Justin Levitt discusses the Shelby County challenge to section 5 of the Voting Rights Act, noting downsides to the Act’s tremendous symbolic importance. In particular, he finds that the case seems to hinge on a simulacrum of the statute—like an editorial cartoonist’s rendering of a politic…
A Cure Worse than the Disease?
The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to ad…
Interpretation Step Zero: A Limit on Methodology as “Law”
122 Yale L.J. 2055 (2013).
A Decision Theory of Statutory Interpretation: Legislative History by the Rules
122 Yale L.J. 70 (2012).
We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article ar…
Intersystemic Statutory Interpretation in Transnational Litigation
122 Yale L.J. 303 (2012).
“Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision
In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. …
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…
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 s…
Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform
The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore. Challenges to President Obama’s health care law have started to work their way toward the Court and have been sustained by two Republican-appointed distric…
Superstatutory Entrenchment: A Positive and Normative Interrogatory
William Eskridge, Jr., and John Ferejohn’s magnum opus on “small ‘c’” constitutionalism and the republic of statutes is an unusually wide-ranging work of legal and political analysis, one that defies comprehensive summary. In this Essay, we bore in on a central element of their thesis: the…
Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment
In his 2008 campaign, then-Democratic presidential candidate Barack Obama promised “comprehensive immigration reform.” Two years into his Administration, and despite continued efforts to promote reform, there has not even been a vote in Congress on a comprehensive bill. President Obama’s prede…
Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution
A Republic of Statutes: The New American Constitution is a landmark collaboration of two preeminent scholars, law professor William N. Eskridge, Jr. and political scientist John Ferejohn. Nearly a quarter century ago, Professor Eskridge, with the late Professor Philip Frickey, sparked the revival of…
Interpreting by the Book: Legislative Drafting Manuals and Statutory Interpretation
120 Yale L.J. 185 (2010).
The Costs of Consensus in Statutory Construction
Finding methodological consensus for statutory interpretation cases is all the rage these days. Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive tec…
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 ju…
Accountability, Deference, and the Skidmore Doctrine
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. C…
Regulating in the Shadow of the U.C.C.: How Courts Should Interpret State Consumer Protection Laws
119 Yale L.J. 1329 (2010).
A Brief Defense of the Written Description Requirement
The Federal Circuit’s December 7, 2009 hearing of oral argument in Ariad v. Lilly has generated significant interest among those who follow patent policy. An en banc decision is expected within the next few months. The dispute arises from the interpretation of 35 U.S.C. § 112, which states in …
Constitutional Avoidance Step Zero
119 Yale L.J. 837 (2010).
A Case for Varying Interpretive Deference at the State Level
119 Yale L.J. 373 (2009).
The Mess of Manifest Disregard
A circuit split is in the making, and it could signal a shift with significant implications for federal arbitration law. Just eighteen months after the U.S. Supreme Court’s March 25, 2008 decision in the controversial case of Hall Street Associates v. Mattel, Inc., three circuits are already in ri…
The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005
In a recent note in The Yale Law Journal, Jon Donenberg argued that (1) program changes in Medicaid ushered in by the Deficit Reduction Act of 2005 (DRA) sub silentio rendered Medicaid’s basic availability provision unenforceable under 42 U.S.C. § 1983, and (2) state fair hearing procedures const…
Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257
Democracy, Not Statehood: The Case for Puerto Rican Congressmen
Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I s…
Disregarding Foreign Relations Law
116 Yale L.J. 1230 (2007)
What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a…
Six Puerto Rican Congressmen Go to Washington
116 Yale L.J. 1389 (2007)
Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment.
Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress.
Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home.
Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform
116 Yale L.J. 1116 (2007)
Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 …
Improving Deference: Chevron as a Voting Rule
Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an a…
Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule's Proposal
The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeules Proposal
Professors Gersen and Vermeule argue that we should replace “doctrinal Chevron,” which instructs courts to defer to an agency’s reasonable interpretation of a statute the agency administers, with “voting rule Chevron.” Under voting rule Chevron, judges would not defer to agency views. Inst…
Chevron as a Voting Rule
116 Yale L.J. 676 (2007)
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…
Restoring the Right Constitution?
116 Yale L.J. 732 (2007)
Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties
116 Yale L.J. 824 (2007)
With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which …
Tax Expenditures as Foreign Aid
116 Yale L.J. 869 (2007)
HAVA's Unintended Consequences: A Lesson for Next Time
116 Yale L.J. 493 (2006)
The New Line Item Veto Proposal: This Time Its Constitutional (Mostly)
When President Bush asked Congress to enact a line item veto in his 2006 State of the Union Address, it sounded like a story we had heard before, one that didn’t have a happy ending. But it turns out that this proposed sequel differs from the 1996 Line Item Veto Act that the Supreme Court struck d…
A Debate Between Peter Strauss and Cass Sunstein
In Beyond Marbury: The Executive’s Power To Say What the Law Is, 115 Yale L.J. 2580 (2006), Professor Cass Sunstein argues that Chevron is the Marbury v. Madison of our age, and that it is now the province of the executive branch to "say what the law is." Professor Peter Strauss responds that Chev…
Justice Breyer's Democratic Pragmatism
115 Yale L.J. 1719 (2006)
As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" t…
Validation Procedures and the Burden of Ballot Access Regulations
115 Yale L.J. 1833 (2006)
Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifie…
Can Attorneys and Clients Conspire?
114 Yale L.J. 1819 (2005)
A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acti…
Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
113 Yale L.J. 1093 (2004)
In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compel…
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
113 Yale L.J. 939 (2004)
Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held …
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
111 Yale L.J. 1707 (2002)
Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…
The Anti-Antidiscrimination Agenda
111 Yale L.J. 1141 (2002)
For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …
Stopping Above-Cost Predatory Pricing
111 Yale L.J. 941 (2002)
This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…
Pennhurst, Chevron, and the Spending Power
110 Yale L.J. 1187 (2001)
Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a pa…
110 Yale L.J. 1089 (2001)
Once in Doubt
110 Yale L.J. 725 (2001)
Disaggregating Constitutional Torts
110 Yale L.J. 259 (2000)
This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…