Best Practices

2
Essay
84.1
The Unbearable Rightness of Auer
Cass R. Sunstein
Robert Walmsley University Professor, Harvard University
Adrian Vermeule
Ralph S. Tyler Jr Professor of Constitutional Law, Harvard Law School

We are grateful to Ron Levin, John Manning, Arden Rowell, David Strauss, participants at a Harvard Law School faculty workshop, and participants at a University of Chicago symposium for valuable comments, and to Evelyn Blacklock and Maile Yeats-Rowe for superb research assistance. Parts of this Essay significantly expand and revise, while drawing on, a section of a near-contemporaneous, and much longer, article, Cass R. Sunstein and Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 S Ct Rev 41. We are grateful for permission to draw on that section here.

I.  Cases and Problems

Administrative Law Best Practices Chevron Regulation Statutory Interpretation
2
Essay
84.1
Originalist Methodology
Lawrence B. Solum
Carmack Waterhouse Professor of Law, Georgetown University Law Center

I owe thanks to the participants in The University of Chicago Law Review Symposium on “Developing Best Practices for Legal Analysis,” which led to the Symposium Issue in which this Essay appears, and to participants at a faculty workshop at Georgetown University Law Center. I owe special thanks to Gregory Klass and Louis Michael Seidman for the their very helpful suggestions and criticisms. My thanks as well to Johanna Schmidt for valuable research assistance. © 2017 by Lawrence B. Solum.

I.  The Theoretical Framework

The development of an originalist methodology requires a theoretical framework, the elaboration of which can begin with the idea of meaning itself.

A.    The Meaning of “Meaning”

Best Practices Linguistics Originalism Statutory Interpretation
2
Essay
84.1
Qualitative Methods for Law Review Writing
Katerina Linos
Professor of Law and Faculty Co-director, Miller Institute for Global Challenges and the Law, University of California, Berkeley, School of Law
Melissa Carlson
PhD Student, Department of Political Science, University of California, Berkeley

We are extremely grateful to Catherine Albiston, Lauren Edelman, Stavros Gadinis, David Lieberman, Aila Matanock, Alison Post, Kevin Quinn, Karen Tani, and participants at the Berkeley Law Faculty Workshop for their generous comments.

I.  Imagining Alternatives and Identifying a Puzzle

Best Practices Empirical Analysis Legal Profession
2
Essay
84.1
Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do
Abbe R. Gluck
Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School

Thanks to Brett Kavanaugh and John Manning; to Yale Law School students Julie Hutchinson, Aaron Levine, Scott Levy, Aviv Lipman, Leah Scaduto, and Kyle Victor; and to participants in presentations at The University of Chicago, University of Minnesota, and Yale law schools; and, as always, special thanks to Henry Monaghan.

I.  Why Interpretive Formalism Has Failed

Best Practices Judicial Decision-Making Statutory Interpretation
2
Essay
84.1
The Concepts of Law
Tom Ginsburg
Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago Law School
Nicholas Stephanopoulos
Assistant Professor of Law, The University of Chicago Law School

Thanks to John Gerring, Brian Leiter, Saul Levmore, Simone Sepe, and Lawrence Solum for superb comments.

I.  A Primer on Conceptualization and Measurement

A.    Concepts and Conceptualization

Best Practices Empirical Analysis Public Choice
2
Essay
84.1
Concepts before Percepts: The Central Place of Doctrine in Legal Scholarship
Richard A. Epstein
Laurence A. Tisch Professor of Law, New York University School of Law; Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer, The University of Chicago Law School

My thanks to Bijan Aboutorabi, The University of Chicago Law School Class of 2018, and Philip Cooper, The University of Chicago Law School Class of 2017, for their valuable research assistance.

I.  Contract Damages

Best Practices Contract Law Jurisdiction Standing
2
Essay
84.1
The Absence of Method in Statutory Interpretation
Frank H. Easterbrook
Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, The Law School, The University of Chicago

This Essay was prepared for the Symposium “Developing Best Practices for Legal Analysis” at The University of Chicago on May 6 and 7, 2016, and is © 2017 by Frank H. Easterbrook.

A conference about “best practices” for legal inquiry supposes that there are practices. In the field of legal interpretation, that assumption is doubtful.

Best Practices Judicial Decision-Making Statutory Interpretation Textualism

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