Statutory Interpretation

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Comment
84.4
The Label Test: Simplifying the Tax Injunction Act after NFIB v Sebelius
Brett J. Wierenga
BA 2014, Hillsdale College; MSc 2015, University of Oxford; JD Candidate 2018, The University of Chicago Law School

In National Federation of Independent Business v Sebelius (“NFIB”), the Supreme Court maintained both its jurisdiction over the case and the constitutionality of the Affordable Care Act (ACA) by threading the needle between the Anti-Injunction Act (AIA) and Congress’s taxing power under the Constitution.

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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.
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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.

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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.

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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.

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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.

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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”

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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

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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.