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Eager to Follow: Methodological Precedent in Statutory Interpretation
Get PDFAn important recent development in the field of statutory interpretation is the emergence of a movement calling for methodological precedent --a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.
This Article shows that both sides have misapprehended the current state of affairs. The federal courts already display a substantial amount of methodological precedent. Commentators have underestimated its prevalence for a few reasons, some conceptual and some empirical. On the conceptual side, scholars are rarely explicit about what they believe methodological precedent entails, and some of their implicit criteria are incorrect. On the empirical side, commentators focus too much on the Supreme Court and a few of its fiercest methodological battles rather than viewing the federal judiciary as a whole. If one applies the right criteria and expands the field of view, one sees that we already have a federal interpretive system that is at least semi-precedential. Methodological precedent is most prominent in the lower courts, but there is unappreciated evidence of it in the Supreme Court as well. And there is reason to expect that methodological precedent will grow over time.
Adopting a proper understanding of methodological precedent\u27s nature and extent has some implications for the normative debate over expanding the role of precedent in interpretive methodology. Some of the implications should hearten the proponents of methodological precedent. But the fact that the current level of methodological precedent has not received its proper due may show that its proponents\u27 real aims are unlikely to be satisfied even as methodological precedent expands and solidifies
Initiative for Strategic Litigation Africa in Johannesburg, South Africa
No full textI will be working remotely with the Initiative for Strategic Litigation in Africa (ISLA) in Johannesburg, South Africa. In my role at ISLA, I will be working with the domestic courts in South Africa, international courts in Africa, and UN treaty bodies to better facilitate women\u27s human and economic rights throughout the African continent
Evaluating the Effects of Fossil Fuel Supply Projects on Greenhouse Gas Emissions and Climate Change Under NEPA
Get PDFDespite the high certainty of our looming climate catastrophe, fossil fuel production and consumption, and the greenhouse gas emissions that result, are increasing. In the United States, fossil fuel production reached record levels in 2018, and oil and gas pipelines are being constructed at an unprecedented pace. The National Environmental Policy Act (“NEPA”) provides the legal framework for the federal government to evaluate the climate impacts of these supply projects, such as leasing public lands and approving pipelines and export terminals. Yet, while federal agencies have begun to analyze how such projects impact climate change there are major inconsistencies in agency practice as well as questions about the accuracy and integrity of these assessments. Some agencies are seeking to avoid any meaningful analysis of GHG emissions, others are downplaying the significance of GHG impacts, others are claiming that the impacts are too uncertain to inform the agency’s decision. There is no programmatic analysis that evaluates the cumulative effects of U.S. fossil fuel policies. The result is a patchwork of project-level analyses that provides fragments of useful information.
Evaluating the Effects of Fossil Fuel Supply Projects on Greenhouse Gas Emissions and Climate Change under NEPA argues that agencies are too often short-changing the public by seeking to limit the scope of their environmental assessments and to elide the central question of the significance of fossil fuel supply projects, and that more comprehensive analyses are necessary in order to draw meaningful conclusions about the effect of government decision-making on fossil fuel use and climate change. After a brief introduction, Part I provides a statutory and factual context. Parts II and III examine recent trends in environmental review and NEPA litigation; analyze nuanced questions of the scope and significance of fossil fuel supply projects’ climate change impacts, the assumptions and analytical techniques that have factored and should factor into NEPA analysis, as well as the core question of whether and to what extent NEPA requires agencies to look at the cumulative effects of multiple fossil fuel leasing and transportation approvals; and propose best practices for agencies seeking to inform themselves and the public about the climate impacts of our nation’s fossil fuel decisions. This Article concludes in the last few paragraphs
Innovating Federalism in the Life Sciences
Get PDFThis Article challenges the view that the US. Food and Drug Administration (FDA) has exclusive Jurisdiction over life sciences innovations. Many current and forthcoming life sciences innovations are innovative therapies such as gene editing, gene therapy, and regenerative stem cell treatments, which are actually hybrids of state and federal Jurisdiction. Thus, both state and federal Jurisdiction coexist: federal Jurisdiction exists to the extent that these medical innovations use drugs or biologics, but state Jurisdiction exists to the extent that these innovations are procedures regulated by states as the practice of medicine.
This Article argues that the regulation of numerous current and forthcoming innovative therapies requires the recognition of a state-federal partnership not only because both federal and state Jurisdiction already coexist but also because a cooperative form of shared governance would improve the transparency and quality of regulation. This Article provides a structural framework for that shared governance that draws on existing federal-state cooperative programs and applies the advantages of cooperative federalism, with an emphasis on often neglected actors in the realm of regulating innovative therapies: states. Incorporating this Article\u27s cooperative structural framework would (I) curtail the federal usurpation of state Jurisdiction, (2) minimize the significance of the FDA \u27s resource shortage by complementing federal regulation, and (3) reduce the likelihood that the FDA would continue to unlawfully incorporate political and social motivations into its decision-making process. Applying this Article\u27s cooperative framework would also serve to recognize the continued existence of both state and federal Jurisdiction over innovative therapie
Online Self-Grading Assessments for Legal Research and Writing Courses
Get PDFDo you want to provide more formative assessment measures to students without overburdening your workload? Do you want to maximize your students\u27 long-term retention of course material? If yes, then check out this chart presentation. This chart identifies free and subscription-based resources covering legal research and writing topics. This chart discusses many on line resources with pre-built exercises and quizzes that provide instant feedback and explanations to students
Saving the Marketplace from Market Failure: Reorienting Marketplace Theory in the Era of AI Communicators
Get PDFArtificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the discovery of truth. Such a shift would allow limitations on AI that harm the flow of ideas, but otherwise protect AI expression that contributes to democratic discourse
Let\u27s Make a (Virtual) Deal: Leveraging Technology to Teach Transactional Drafting Online
Get PDFIn an on line teaching environment, technology tools such as Zoom, Microsoft Word Track Changes, Donna, Google documents, and CooleyGo (among others) can assist professors in teaching transactional drafting. This session is based on experiences teaching transactional drafting in first-year and upper-level legal writing courses in an online format during the current pandemic and will 1) introduce data regarding the use of technology in practice, 2) discuss (and demonstrate) the technology tools used to teach transactional drafting, and 3) provide examples for how legal writing professors can integrate short transactional drafting exercises into their current curriculum using on line teaching and technology tools. This presentation will be interactive and will include polls, chats, and technology demonstrations