Statutes in Common Law Courts

Jeffrey A. Pojanowski

91 Texas L. Rev. 479

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The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts.  Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes.  Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation.  Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation.  This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation.  While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.

This Article aspires to help theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation.  This inquiry takes us beyond the familiar moves in federal debates on interpretation.  In turn, it suggests an interpretive method that defies both orthodox textualism and purposivism in that it may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of purpose or equity.  Such a model accounts for state court practice at the intersection of statutes and common law that recent work on state-court textualism neither confronts nor explains.  This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts at the intersection of statutes and pockets of federal common law.

The framework this Article constructs to approach the common law question can also help organize the fledgling field of state–federal comparison more generally.  With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries.  At the same time, this framework can help us think about intersystemic interpretation with greater rigor—an advance that can aid state and federal jurisprudence alike.

The New General Common Law of Severability

Ryan Scoville

91 Texas L. Rev. 543

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The doctrine of “severability” permits a court to excise the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder.  Severability figures centrally in a broad array of constitutional litigation, including recent litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act.  Nevertheless, the doctrine remains underexplored.  In particular, no commentator has thoroughly examined choice-of-law rules pertaining to its application.  This Article aims to fill that void.  The Article contends that in recent decisions the Supreme Court has quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or a supporting federal interest.  The new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism.  The Article closes by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.

When History Mattered

Alfred L. Brophy

91 Texas L. Rev. 601

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Brophy reviews David M. Rabban’s Law’s History: American Legal Thought and the Transatlantic Turn to History.

Arbitration Under Siege: Reforming Consumer and Employment Arbitration and Class Actions

George Padis

91 Texas L. Rev. 665

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In this Note, Mr. Padis argues that binding arbitration clauses in consumer and employment contracts should continue to be enforced because arbitration provides employees and consumers important advantages. At the same time, however, consumer and employment arbitration must be seriously reformed.  The Note concludes that the reform should be sensitive to the different concerns that arise from different types of disputes, instead of the blunderbuss approaches that have emerged out of Congress and the Supreme Court.

More Flies with Honey: Encouraging Formal Channel Remittances to Combat Money Laundering

Colin Watterson

91 Texas L. Rev. 711

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In this Note, Mr. Watterson seeks to address problems associated with regulating informal value transfer systems (IVTS), particularly in the remittance context, by proposing that policy makers focus on encouraging consumers to use formal, transparent money transfer channels.  Reducing legitimate demand for underground services would decrease the popularity of underground firms and thus the opportunity for criminals to exploit them.  Further, if consumers have viable alternative options to underground firms, vigorous enforcement becomes far less problematic.  Ultimately resolving the challenges that these channels present is only possible if formal channels can compete with underground firms; otherwise, the demand for underground services will continue to undermine the U.S. anti-money laundering scheme.  This Note argues that the best approach to money laundering is making compliance easier and cheaper.  This Note proposes simplifying our current regulatory regime through the enactment of a national regulatory scheme that is charged with enacting policies that will make formal channels more competitive.