Legislative intent
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The Right to Strike and the "Deadweight" of the Common Law Open
The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative ena…
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Unboxing the Active Role of the Legislative Power in Brazil Open
The main purpose of this article is to show the relevance of the legislative branch participation in formatting bills originating in the executive. It shows that a strong executive is not necessarily accompanied by a weak legislature. By a…
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Complete streets state laws & provisions: An analysis of legislative content and the state policy landscape, 1972–2018 Open
Across the U.S., states have adopted Complete Streets legislative statutes—state laws that direct transportation agencies to routinely design and operate roadways to provide safe access for all users, including pedestrians, bicyclists, mot…
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Irresponsible Corporate-Responsibility Rules Open
A wave of legislative efforts in the first half of this decade, at both the federal and state levels, has steered corporations to engage in corporate social responsibility. At the national level, Congress is increasingly calling upon the S…
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THE FLEXIBILITY RULE IN ADMINISTRATIVE LAW Open
Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has…
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Present at Antitrust's Creation: Consumer Welfare in the Sherman Act's State Statutory Forerunners Open
For the last four decades, federal courts have construed the Sherman Act as a consumer welfare statute. But considerable disagreement persists within the legal academy regarding the true legislative aims of American antitrust law. This Not…
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Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer? Open
This study presents a new analysis of an iconic United States Supreme Court case, Holy Trinity Church v. United States (1892). The question in Holy Trinity Church concerned whether a law making it illegal to pay the transportation of a per…
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Administrative Rationality Review Open
Under the familiar rational basis test, a court must uphold a challenged statute if there is any conceivable basis to support it. Courts routinely accept speculative — even farfetched — justifications that few would describe as “rational” …
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Statutory Interpretation, Judicial Discretion, and Equitable Defenses Open
Equitable defenses were given up for dead after eBay v. MercExchange. But they have been resurrected. The Supreme Court is raising the dead in recent decisions. It is integrating these judge-made doctrines into federal law despite their om…
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Rola materiałów legislacyjnych w porządku prawnym Open
THE ROLE OF LEGISLATIVE HISTORY IN LEGAL ORDERInformation originating from legislative process plays a significant role in the system of law. Not only in the process of interpretation of legal texts, but also in many other areas. The prese…
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Cryptocurrency Economics and the Taxation of Block Rewards Open
This report argues that including proof-of-stake cryptocurrency block rewards in gross income when the reward tokens are first created results in inequitable taxation and would discourage U.S. taxpayers from participating in this new techn…
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Parliament’s Constitution: Legislative Disruption of Implied Repeal Open
UK constitutional law establishes priority rules governing the relations among legal sources. According to the implied repeal rule, a later statute is preferred to and repeals an earlier statute where the two cannot stand together. There i…
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The Tax Legislative Process: A Byrd’s Eye View Open
The year 2017 was, among other distinctions, the year of the Byrd rule. This once-obscure Senate procedural provision—on the books since 1985 but only recently the stuff of page one news1 — featured prominently in several failed attempts t…
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Symmetry's Mandate: Constraining the Politicization of American Administrative Law Open
Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over t…
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What the Legislature Did Not Say. Legislative Intentions and Counterfactuals in Legal Argumentation Open
What can be inferred from the silence of the legislature about a certain circumstance? What kind of intention, if any, can be attributed to the silent legislature? We show in the first part of the paper that antithetical claims can be infe…
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Legal advantages and legislative exceptions Open
In the article the legal institutes “legal advantage” and “a legislative exception” are exposed to analysis. \nFrom theoretico-legal and branch positions elements of their unity, distinction, interaction and contradiction \nare investigate…
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Insider Trading's Legality Problem Open
In late 2016, in its highly-watched decision in Salman v. United States, the Supreme Court attempted once again to clarify the crime of insider trading, this time regarding the secondary and tertiary recipients of information commonly refe…
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Agency Legislative Fixes Open
Legislative drafting mistakes can upset statutory schemes. The Affordable Care Act was nearly undone by such mistakes. The recent Tax Cuts and Jobs Act is rife with them. Traditional legal scholarship has examined whether courts should hel…
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The Legislative Role in Procedural Rulemaking Through Incremental Reform Open
Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incre…
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Basic Principles of the Oversight Functions of the House of Representatives on Legislative Functions in Indonesia Open
Legislative products have caused public disapproval, so a judicial review has to be submitted to the Constitutional Court (MK). Therefore, it is necessary to analyze the basic principles of the DPR's oversight function of the legislative f…
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Agencies' Obligation to Interpret the Statute Open
Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpre…
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Universe of PFAS Regulation Rapidly Expanding Open
Even as states are responding to the coronavirus pandemic, their efforts to address per- and polyfluoroalkyl substances (PFAS) in the environment and in drinking water continue. As of this writing, seven states have taken specific steps in…
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Legislative Notes: The Education of All Handicapped Children Act of 1975 Open
Part I reviews the landmark judicial decisions which have established the right of handicapped children to participate in free, public education. The basic provisions of the Education of All Handicapped Children Act of 1975 are then presen…
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Drafting Statutes and Statutory Interpretation: Express or Assumed Rules? Open
The High Court describes legislative intent as the outcome of 'accepted' rules of statutory interpretation 'assumed' by the judiciary, Parliament and the executive. The drafters of statutes, the parliamentary counsel, have been included as…
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Making Sense of Legislative Standing Open
Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudica…
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The Legislative Text as a Legal Story: a Storytelling Approach to Contemporary Legislative Drafting Open
A recent approach to legislative drafting, seen in common law jurisdictions which particularly praise plain and accessible legal communication, includes the presentation of legislative provisions to readers in a storytelling format. The le…
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Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes Open
In this third of a series of articles on wrongful conviction compensation statutes, Professor Jeffrey Gutman tackles the first statute attempted to be passed in the United States – the federal wrongful conviction compensation statute. Cham…
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Loquacious legislature: are statutes ‘always speaking’? Open
This thesis concerns: (a) how we should understand legislative words and phrases if they have changed in meaning since they were enacted; and (b) how the UK courts have actually done so. The key question is: should we give legislative lang…
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Constituencies and Control in Statutory Drafting: Interviews with Government Tax Counsels Open
Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examinati…
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The Doctrine of Clarifications Open
Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifi…