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Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor
Get PDFPublished as Chapter 18 in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith, eds.
Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence.https://digitalcommons.law.buffalo.edu/book_sections/1423/thumbnail.jp
Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment of Constitutional Judgment
Get PDFThis Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.
First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. Proportionality reduces pluralism in rights adjudication to the degree of justified infringement of a right whose normative content is otherwise held to be unchanging. This trades constitutional hermeneutics for a far narrower, more impoverished view of the judicial role and the purpose of rights adjudication: a view of goal-oriented, technical policy refinement that offers citizens no resources to better comprehend the disagreements over public values that divide them. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence that employs proportionality analysis—and examine how such limitations align neatly with criticisms leveled at American categoricalism in various areas of US constitutional law.
Second, the Article offers an alternative. American constitutional theory requires a novel guiding light, which I term “narrative doctrinalism.” On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The Article develops narrative doctrinalism’s normative and methodological insights in detail. It then applies them to a salient case from a recent Supreme Court term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution continues to guide—for good or ill—how the Court disposes of analogous conflicts among rights regimes in other areas of law
Baldy Center Podcast Episode 7 Picture
No full textMoney falling from above; stock image via Canva Pro, 2020.https://digitalcommons.law.buffalo.edu/baldy_center_images/1006/thumbnail.jp
Baldy Center Podcast Episode 23 Picture
No full texthttps://digitalcommons.law.buffalo.edu/baldy_center_images/1020/thumbnail.jp
The Future of the Habitual Residence Analysis in the United States Post-\u3cem\u3eMonasky\u3c/em\u3e
Get PDFBaldy Center Podcast Episode 19 Picture
No full texthttps://digitalcommons.law.buffalo.edu/baldy_center_images/1016/thumbnail.jp
Statutory Interpretation and Chevron Deference in the Appellate Courts: An Empirical Analysis
Get PDFWhat statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations. It then compared how use of those methods varied depending on whether or not the appeals court expressly cited or applied Chevron.
Most notable was how appellate courts used precedent and policy in contrasting ways when ruling on Board statutory interpretation cases. While precedent was used more when courts reversed the Board’s pro-employee interpretation to reach an anti-employee outcome, courts referenced policy more to uphold Board rulings that were pro-employee in orientation. Both Democrat- and Republican-majority courts exhibited different tendencies in their choice of methods as well. When ruling on anti-employee interpretations, Democrat-majority courts often cited and relied on text more than Republican-majority courts. In addition, Republican-majority courts disproportionately used substantive canons to uphold anti-employee interpretations while Democrat-majority courts favored language canons when reversing such appeals.
The study also yielded interesting observations about Chevron deference. Courts citing and applying Chevron had much higher agency-win rates than when Chevron was not used. Courts overwhelmingly cited Chevron or employed a Chevron-like “reasonableness” standard more when they upheld the agency’s statutory interpretation than when they reversed the agency, thus suggesting that courts may use Chevron to cabin judges’ ideological proclivities. The study also revealed a divergence in statutory methods depending on how a court employed Chevron. Courts expressly citing the Chevron two-step framework cited and relied on the statutory text and employed language canons more in the writing of the opinion than when they did not specifically cite Chevron. In addition, Republican-majority courts upholding Board interpretations often employed substantive canons more when citing Chevron than when not. Chevron-citing courts also disproportionately invoked policy considerations compared to non-Chevron-citing courts when upholding the Board’s interpretation. Courts declining to cite or apply Chevron at all had different tendencies. Those that declined to cite Chevron, or employ even a similar Chevron-like “reasonableness” standard, were more likely to cite precedent. Substantive canons were also employed to reverse the Board’s interpretation more by courts that declined to apply Chevron than courts that applied Chevron or a Chevron-like reasonableness standard.
Although the study is limited to one area of law and to the workings of a single agency—and one of the most politically charged agencies at that—it offers fresh insight into how empirical analysis can be used to look beyond the black box of federal court statutory interpretation and Chevron deference to see what shapes judicial opinions in their review of agency statutory interpretations