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GRAMMAR & SYNTAX ARGUMENTS ON THE ROBERTS COURT
Full text linkIn his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of the status of grammar-based arguments on the modern Court, based on a study of 668 statutory cases decided during the Roberts Court’s first sixteen-and-a-half terms. In addition to empirical data chronicling the Court’s increasing use of grammar-based arguments over time, the comment provides a brief taxonomy of the specific forms of grammar-based arguments the Roberts Court tends to employ. It also notes some problems with the Court’s use of grammar-based arguments, including that the Justices tend to rely on their own judicial intuitions—rather than grammar treatises or sources authored by linguistics experts—as authority for the grammar-based rules they invoke and that the Court is using grammar-based arguments as outcome-determinative in a surprising percentage of cases. In the end, the comment suggests greater caution in the Court’s use of grammar-based arguments. Specifically, it advocates that the Court (1) support any grammar-based arguments it employs with references to linguistic treatises or grammar books authored by experts in the fields of language or linguistics and (2) avoid basing its statutory interpretations exclusively or even primarily on any grammar-based rule—instead limiting the use of grammar-based arguments to situations in which they corroborate the meaning indicated by other interpretive canons and tools
American Handling of Holocaust Property Takings: What We Can Learn From International Policies
Full text linkThe Supreme Court decision in Federal Republic of Germany v. Philipp and US enforcement of the Foreign Sovereign Immunities Act have made it extremely difficult for Holocaust survivors and their families to recover lost and stolen property from during the World War II era. Other countries, such as the United Kingdom, France, and Germany, have had great success in this arena through various methods. This Note explores the ways in which US jurisprudence continues to make recovery inaccessible, while highlighting the specific processes these few European countries have created to foster recovery. Finally, this Note argues that the US must adopt an agency that uses mediation-based proceedings to resolve issues of looted art
Balancing Chevron, Skidmore, and Major Questions: A Novel Framework for Judicial Deference to Agency Legal Interpretations
Full text linkThe Supreme Court’s decision in West Virginia v. EPA is a watershed moment for administrative law. For the first time, the Court explicitly invoked the Major Questions Doctrine by name in a majority opinion. The usage of the Major Questions Doctrine is important on its own, but equally important is the fact that the longstanding Chevron doctrine played no part in the majority’s analysis. The absence of Chevron doctrine in West Virginia in favor of the Major Questions Doctrine continues a trend where the Court has been relying on Chevron less often. The threats the Chevron faces do not appear to be ending with West Virginia either. In 2024, the Court will hear Loper Bright Enterprises v. Raimondo, in which the question presented is whether the Court should overrule Chevron entirely. With the Major Questions Doctrine on the rise and the fate of Chevron in doubt, now is the perfect time to rethink how judicial deference to the administrative state operates. This note proposes a novel framework for judicial deference that includes Chevron, Skidmore, and the Major Questions Doctrine in an effort to balance an effective and efficient administrative state against constitutional separation of powers principles. This framework centers on the question of if the regulation at hand involves questions of “political and economic significance” to make a determination between applying either a deferential Chevron standard (if no) or the Skidmore standard (if yes)
Full Moon or Full Fraud? A Proposed Method for Interpreting Emojis Under Rule 10b-5
Full text linkIn the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake in the company and caused large losses to ripple among r/wallstreetbets members. Shareholders brought suit against Cohen, and alleged that a tweet he sent with the �� emoji constituted a material misrepresentation under Rule 10b-5 of the Securities Exchange Act. Anyone in the retail investing community would know that the emoji takes on a particularized meaning within the stock trading context: a stock is heading to the moon (i.e., increasing in price). The litigation brings securities law, emoji interpretation, and meme stocks to a crossroads. As such, this note argues for the need for an emoji interpretation reference tool for judges to use when they come across securities litigation that involves emojis. While In re Bed Bath and Beyond Securities Litigation may be the first case of its kind, it certainly will not be the last. Judges must be well-equipped to engage in emoji interpretation and impose liability for material misrepresentations caused by emoji use, and this note proposes a tool that will allow judges to do so uniformly and seamlessly: a meme stock-focused emoji lexicon similar to Black’s Law Dictionary
Baseball\u27s Antitrust Exemption Still Looms Large For Minor Leaguers Despite Their Recent Unionization & Collective Bargaining Agreement
Full text linkOver a hundred years ago, the Supreme Court of the United States granted Major League Baseball (MLB) an antitrust exemption, allowing the organization to engage in anticompetitive practices that antitrust laws are designed to prevent. Today, MLB remains the only sports league with an antitrust exemption, despite legal challenges and inquiries, especially regarding its impact on the recently unionized Minor League Baseball players in 2022. Issues related to the exemption arise from the history of poor conditions for Minor League Baseball players in relation to their wages, living conditions, and transportation, among others. Despite recent improvements resulting from unionization and a new collective bargaining agreement, the question of whether MLB should retain its antitrust exemption remains unresolved. The Supreme Court has said it is Congress’s job to make that decision, even though the Court itself granted the exemption. This Note argues that baseball’s antitrust exemption is problematic and should be removed by the judicial system because its continuation remains an obstacle for Minor League Baseball players seeking to improve their conditions
The Politics of Constitutional Dignity Jurisprudence
Full text linkThis Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the Court’s dignity jurisprudence, shaped primarily by three Justices—Murphy, Brennan, and Kennedy—regularly strengthened the progressive side of the political divide. However, the progressive optimism is conceptually misguided because it overlooks dignity’s considerable conservative potential. The link between progressive politics and constitutional dignity appears more coincidental than necessary, and the intellectual history of the term reveals a highly ambiguous notion, attractive to politics of various stripes. Similarly, comparative examples, drawn from France and Germany, demonstrate how dignity’s political orientation is unclear at best, and reactionary at worst. Thus, the Article suggests that the traditional rejection of dignity on originalist grounds is not likely to preclude future employment of the term by conservative Supreme Court Justices. On the contrary, the political allegiance of constitutional dignity has already seen a shift, as the term is now increasingly used to strengthen conservative political claims. The Article demonstrates how conservative Justices have appropriated liberal dignitarian language in at least three distinct areas of constitutional law: criminal justice, abortion, and racial equality. There are good reasons to expect conservative judges and jurists to do so ever more forcefully in the future
