84.2
Spring
2017

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Book review
84.2
Positive Pluralism Now
Paul Horwitz
Gordon Rosen Professor of Law, University of Alabama School of Law

My thanks to Rick Garnett and Marc DeGirolami for comments.

A long time ago—roughly between the 2014–2015 academic year and the spring of 2016, when Donald Trump’s presidential candidacy monopolized the public conversational agenda—there was a heated debate about whether our culture was experiencing a reprise of the 1990s and its struggles over “political correctness.”

Freedom of Speech Institutional Design Public Choice
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Article
84.2
Reconsidering Substantive Canons
Anita S. Krishnakumar
Professor of Law, St. John’s University School of Law

I owe deep thanks for valuable insights and conversations to Aaron-Andrew Bruhl, William N. Eskridge, Abbe R. Gluck, Rebecca M. Kysar, Margaret H. Lemos, Katherine Shaw, Lawrence Solan, Nelson Tebbe, and Adam Zimmerman. I am especially indebted to my husband, Ron Tucker, for his patience with this project. Special thanks to Dean Michael A. Simons and St. John’s University School of Law for generous research assistance and to participants at workshops and colloquia at Yale Law School and the Benjamin N. Cardozo School of Law for their comments on earlier drafts of this Article. Christina Corcoran, Sade Forte, Ilya Mordukhaev, Jennifer Roseman, Samuel Sroka, Rita Wang, Kim Friedman, Lissa Yang, Peter Ryan, Vince Nibali, Christine Sammarco, and Thomas Combs provided terrific research assistance. Thanks also to the editors at The University of Chicago Law Review for their excellent work. All errors are my own.

There is a popular belief among statutory interpretation scholars that substantive canons of statutory construction—that is, policy-based background norms or presumptions such as the rule of lenity and the canon of constitutional avoidance—act as an “escape valve” that helps textualist judges eschew, or “mitigate,” the rigors of textualism.
Empirical Analysis Statutory Interpretation Substantive Canons
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Article
84.2
Chevron Step One-and-a-Half
Daniel J. Hemel
Assistant Professor of Law, The University of Chicago Law School

For helpful comments, the authors thank Nicholas Bagley, Aditya Bamzai, William Baude, Omri Ben-Shahar, Ryan Doerfler, Richard Epstein, Matthew Etchemendy, Lee Fennell, Margot Kaminski, Robin Kar, Genevieve Lakier, Ronald Levin, Jonathan Masur, Richard McAdams, Jennifer Nou, Michael Pollack, Eric Posner, Richard Posner, John Rappaport, Peter Shane, Paul Stancil, Nicholas Stephanopoulos, David Strauss, Lisa Grow Sun, Christopher Walker, and the participants at workshops at The Ohio State University Moritz College of Law, the J. Reuben Clark Law School, and The University of Chicago Law School. An Online Appendix detailing Chevron Step One-and-a-Half cases is available on The University of Chicago Law Review’s website. All errors are strategic.

Aaron L. Nielson
Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University

The Supreme Court’s decision in Chevron U.S.A. Inc v Natural Resources Defense Council, Inc has created a cottage industry in choreography.

Administrative Law Chevron Statutory Interpretation
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Article
84.2
Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws
Edward B. Foley
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, The Ohio State University Moritz College of Law

This Article, part of a larger project on the concept of fair play in electoral competition, grows out of research conducted during a fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law (CDDRL). I am extremely grateful, both for the fellowship itself and for the many helpful exchanges of ideas during the fellowship, to Bruce E. Cain, Larry Diamond, Francis Fukuyama, Nathaniel Persily, and Stephen J. Stedman. While at Stanford, I had the opportunity to present an early version of this Article at the Stanford Law Review’s symposium on the “Law of Democracy” (February 5, 2016), and also as part of a CDDRL workshop (February 25, 2016). I also presented a version at the University of Kentucky College of Law (April 1, 2016). I very much appreciate the feedback I have received from those who participated at these events, including Tabatha Abu El-Haj, Stephen Ansolabehere, Rabia Belt, Guy-Uriel Charles, Joshua A. Douglas, Luis Fuentes-Rohwer, Heather Gerken, Richard L. Hasen, Samuel Issacharoff, Michael S. Kang, Eugene Mazo, Michael W. McConnell, Maggie McKinley, Spencer A. Overton, Richard H. Pildes, Bertrall Ross, Jane S. Schacter, Nicholas Stephanopoulos, and Justin Weinstein-Tull. As always, I’ve benefited immensely from feedback received from my Moritz colleagues, especially Steven F. Huefner and Christopher J. Walker, as well as Michael Les Benedict, Lisa Marshall Manheim, and Evan Zoldan. I have also been tremendously fortunate to work with Matt Cooper and Paul Gatz, two of Moritz’s superb law librarians, who have been amazingly creative and effective in unearthing a wide range of sources for this project.

Can the US Constitution, as currently written, handle the problem of excessive partisanship? Or, instead, does the Constitution need to be amended to address this problem?

Due Process Election Law Gerrymandering
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Article
84.2
Before Interpretation
Anya Bernstein
Associate Professor, SUNY Buffalo School of Law. JD, Yale Law School; PhD (Anthropology), The University of Chicago

I have benefited from the incisive commentary of Todd Aagaard, Christine Bartholomew, Barton Beebe, Guyora Binder, Michael Boucai, Michael Coenen, Nicholas Day, David Engel, Richard Fallon, James Gardner, Jessica Greenberg, Jerry Mashaw, Hiroshi Motomura, Anthony O’Rourke, Nicholas Parrillo, Justin Richland, Cristina Rodríguez, Glen Staszewski, and Tico Taussig-Rubbo, as well as presentation participants at SUNY Buffalo School of Law, the Academia Sinica Institutum Iurisprudentiae, and the 2016 Law and Society Association conference.

Interpretation requires an object: a text, an act, a concept, a something to be interpreted. An interpreter must pick out that object.

Judicial Decision-Making Statutory Interpretation Textualism
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Article
84.2
The (Not So) Plain Meaning Rule
William Baude
Neubauer Family Assistant Professor of Law, The University of Chicago Law School

We appreciate helpful comments and criticisms from Larry Alexander, Samuel Bray, Eric Citron, Jonah Gelbach, Abbe Gluck, Richard McAdams, Sean Mirski, Eric Posner, Richard Re, Stephen Sachs, Adam Samaha, Frederick Schauer, Asher Steinberg, James Stern, David Strauss, Ilan Wurman, the participants in the Legislation Roundtable at the Benjamin N. Cardozo School of Law, and the editors of The University of Chicago Law Review. We also appreciate research support from the SNR Denton Fund and the Alumni Faculty Fund, and excellent research assistance from Kelly Holt.

Ryan D. Doerfler
Assistant Professor of Law, University of Pennsylvania Law School

Many tenets of statutory interpretation take a peculiar form. They allow consideration of outside information—legislative history, practical consequences, the statute’s title, etc.—but only if the statute’s text is unclear or ambiguous.

Judicial Decision-Making Statutory Interpretation Textualism

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