Law & Society: Legislation eJournal最新文献

{"title":"The So-Called Series-Qualifier Canon","authors":"Adam Crews","doi":"10.2139/ssrn.3820212","DOIUrl":"https://doi.org/10.2139/ssrn.3820212","url":null,"abstract":"In Facebook, Inc. v. Duguid, a near-unanimous Supreme Court forcefully applied the so-called series-qualifier canon, which purports to state the rule for (among other things) how postpositive modifiers normally attach to certain antecedents. With this canon, the Court identified a presumptive natural reading of the statute at issue, and that presumption framed the rest of the Court’s analysis. Concurring only in the judgment, Justice Alito agreed with the Court’s interpretation but expressed concern over the majority’s heavy reliance on the canon. In Justice Alito’s view, the majority used the canon too much like a rule, despite intuitive reasons to doubt its force. Justice Alito’s intuitions were exactly right. The so-called series-qualifier canon is an unjustified revision to a principle from a single case in the 1920s—a case that materially distorted the real series qualifier principle that America borrowed from England. This essay tells that story. Drawing on formal linguistics and interpretive history, I explain that a series-qualifier principle initially served a much smaller role than the contemporary series-qualifier canon, a supposed “rule” that runs contrary to English usage and processing. By relying on this contemporary misstatement and not on the true series-qualifier principle, the Court in Facebook committed a serious process error and potentially set up lower courts to approach interpretation in a way that will undermine textualism’s core commitments.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"225 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130653219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Report of the Death of the Interpretive Regulation Is an Exaggeration","authors":"John A. Townsend","doi":"10.2139/ssrn.3400489","DOIUrl":"https://doi.org/10.2139/ssrn.3400489","url":null,"abstract":"There is a claim about in the scholarly administrative law community that the APA category of interpretive regulations, including tax regulations under IRC § 7805(a), are no longer a viable category under the Administrative Procedure Act (\"APA). Instead, so the claim goes, regulations that have historically been considered interpretive because all they do is reasonably interpret ambiguous statutory text are now legislative regulations under the APA thus subject to the APAs legislative regulations’ requirements for Notice and Comment and Prospectivity. \u0000 \u0000In the article, I quote, with permission, a noted scholar who claims: \u0000 \u0000• \"regulations promulgated under 7805(a) are legislative rules as that term is understood for purposes of the Administrative Procedure Act;\" \u0000 \u0000• \"Administrative law doctrine says that legislative rules are those that carry the force of law, while interpretative rules do not. Although the force of law concept is blurry at the margins, I do not see any possible way that one could conclude that 7805(a) regulations do not carry the force of law;\" \u0000 \u0000• \"In summary, there are no Treasury regulations that are interpretative rules as that term is understood for purposes of the Administrative Procedure Act -- irrespective of the terminology embraced by the tax community.\" \u0000 \u0000If that claim is true for § 7805(a) regulations, it is true for all agency regulations interpreting the statute under similar agency grants (either express or implied). \u0000 \u0000My limited anecdotal polling from talking with administrative law professors is that the claim is a mainstream scholarly position. And courts noise around with the concept, although usually without nuance. \u0000 \u0000By contrast, in the oral argument in Kisor v. Willkie (Sup. Ct. No. 18-15), transcript p. 10), Justice Breyer, an administrative law scholar (taught administrative law at Harvard Law School), said “there are hundreds of thousands, possibly millions of interpretive regulations.” And courts regularly refer to interpretive regulations as if they were a viable APA category. \u0000 \u0000So which is it? Are interpretive regulations generally and Treasury interpretive regulations specifically a viable APA category? \u0000 \u0000The APA recognizes two categories of regulations – legislative and interpretive. The APA's original meaning of those categories may be stated as follows (in broad strokes): \u0000 \u0000• Legislative rules, which must be issued as Notice and Comment regulations, are the law within the scope of the delegation. Legislative rules (regulations) are based on an express statutory delegation of authority to the agency to set the rules that are the equivalent of statutes. In APA parlance, legislative regulations have the force of law, just as statutes do. They have the force of law because Congress has delegated law-making power to the agency. \u0000 \u0000• Interpretive rules, like judicial interpretations, interpret statutory text. Interpretive regulations, like judicial interpretations, do not create law. The statu","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134191590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ‘Heathrow’ Case: Polycentricity, Legislation, and the Standard of Review","authors":"J. Bell, E. Fisher","doi":"10.1111/1468-2230.12555","DOIUrl":"https://doi.org/10.1111/1468-2230.12555","url":null,"abstract":"The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision‐making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under‐analysed.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126168354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Policy Forum: Assessing Party Platforms for Fiscal Credibility in the 2019 Federal Election","authors":"Mostafa Askari, K. Page","doi":"10.32721/ctj.2020.68.2.pf.askari","DOIUrl":"https://doi.org/10.32721/ctj.2020.68.2.pf.askari","url":null,"abstract":"Party platforms are important. They signal what matters for political parties and with whom parties are engaging. Platforms can be used to predict government behavior and are an important tool to hold a government to account. In the 2019 federal election, all the major parties released platform documents outlining an array of policy positions to address short- and medium-term policy challenges. For the first time, all political parties worked with the parliamentary budget officer and released independent costings of their major proposals. The Institute of Fiscal Studies and Democracy (IFSD) at the University of Ottawa provided an assessment of whether the fiscal plan — revenues, spending, and balances — and the economic and fiscal assumptions underlying each platform were realistic, responsible, and transparent. This article describes the approach taken by the IFSD to assess the fiscal credibility of party platforms, what was found, and the potential implications for governing in a minority Parliament and future elections.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130066837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Spaceu2019 Final Report","authors":"Lorenzo Cicchi","doi":"10.2139/ssrn.3530802","DOIUrl":"https://doi.org/10.2139/ssrn.3530802","url":null,"abstract":"In occasion of the European Parliament elections of 2019, the EUI in collaboration with the University of Lucerne in Switzerland launched project spaceu2019, a two-fold online tool specifically tailored for mobile EU citizens voting either in their country of citizenship or residence. The first pillar consists of an interactive database, informing users on their electoral rights and allowing them to compare the conditions and requirements for participating in the political process of their country of residence or citizenship. The second pillar is euandi2019, a Voting Advice Application (VAA) helping citizen find the political party that best matches their policy preferences. The main objective was to create a more aware European-wide, politically active citizenry, therefore making the EP elections more relevant and transnational. This also may have helped getting citizens out to vote, given that EP elections are traditionally prone to particularly low levels of turnout. The main target group were EU mobile citizens as well as those with a dual citizenship, but also European citizens at large as this device is open to all and gives useful information on how to vote, and which parties are the best match, to static citizens as well. The project received funding by the European Union’s Rights, Equality and Citizenship Programme (2014-2020), Grant Agreement number 785683. This report provides information on the implementation and usage figures for both online tools.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129072832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Descended from Immigrants and Revolutionists': How Family Immigration History Shapes Representation in Congress","authors":"J. Feigenbaum, Maxwell Palmer, Benjamin Schneer","doi":"10.2139/ssrn.3459690","DOIUrl":"https://doi.org/10.2139/ssrn.3459690","url":null,"abstract":"Does recent immigrant lineage influence the legislative behavior of members of Congress on immigration policy? We examine the relationship between the immigrant background of legislators (i.e., their generational distance from immigration) and legislative behavior, focusing on roll-call votes for landmark immigration legislation and congressional speech on the floor. Legislators more proximate to the immigrant experience tend to support more permissive immigration legislation. Legislators with recent immigration backgrounds also speak more often about immigration in Congress, though the size of immigrant constituencies in their districts accounts for a larger share of this effect. A regression discontinuity design on close elections, which addresses selection bias concerns and holds district composition constant, confirms that legislators with recent immigrant backgrounds tend to support pro-immigration legislation. Finally, we demonstrate how a common immigrant identity can break down along narrower ethnic lines in cases where restrictive legislation targets specific places of origin. Our findings illustrate the important role of immigrant identity in legislative behavior and help illuminate the legislative dynamics of present-day immigration policy.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130692753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Better Hope for Campaign Finance Reform","authors":"Edward J. McCaffery","doi":"10.2139/SSRN.3431204","DOIUrl":"https://doi.org/10.2139/SSRN.3431204","url":null,"abstract":"There is too much money in American politics, and too much of it comes from too few citizens. Mega-donors like Sheldon Adelson or Tom Steyer make $100 million political expenditures every election cycle. Attempts to limit such large political contributions have failed at every level: judicially, legislatively, and administratively. Much of the academic literature has joined the real world’s sense of despair. This Article takes a new tack. By changing our tax system from an income to a consistent progressive spending tax, the true cost of political expenditures by mega-donors could increase tenfold. By using a strategy of taxing that has been applied to such “bads” as alcohol and cigarettes for centuries, and by identifying high-end spending or consumption in general as such a social “bad,” this Article offers hope for solving what seems to be a hopeless problem.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133243179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Campaign Finance Transparency Affects Legislators’ Election Outcomes and Behavior","authors":"A. Wood, C. Grose","doi":"10.2139/ssrn.3236939","DOIUrl":"https://doi.org/10.2139/ssrn.3236939","url":null,"abstract":"Do audits by executive agencies impact the behavior of those audited? Does revealing negative information about legislators affect electoral results and behavior? Institutions that encourage transparency, such as campaign finance disclosure, influence mass and elite behavior. Campaign finance transparency provides information to voters during legislative campaigns about the character of candidates, and this information affects voter and legislator behavior. The U.S. Federal Election Commission conducted random audits of 10 percent of U.S. House members in the 1970s. This FEC program is the only randomized experiment a U.S. agency has conducted on federal legislators and their electorates. We find that audited legislators were more likely to retire and faced more competitive re-elections relative to the control group, an effect that is amplified among incumbents whose audits revealed campaign finance violations. Further, campaign finance scandals are associated with lower incumbent vote shares and approval; and more negative advertisements in the 2000s.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127867399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting","authors":"J. Peterson","doi":"10.1111/lapo.12132","DOIUrl":"https://doi.org/10.1111/lapo.12132","url":null,"abstract":"Do judges ruling on redistricting litigation increase electoral competition in congressional races while simultaneously drawing districts favoring their party's congressional candidates? I offer a novel theory of judicial partisan calculation, arguing that judges draw more competitive districts than legislatures or commissions, but that judge‐drawn districts favor the electoral interests of their copartisans. These claims are reconcilable because judges target districts held by contrapartisan legislators to maximize their copartisans’ fortunes. I find that Democratic judges draw competitive districts by adding Democratic voters to Republican‐held House constituencies. Court‐administered redistricting increases competitiveness, ostensibly due to judicial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"229 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132413109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Whether Section 143-A Introduced by the Amendment Act No. 20 of 2018 in the Negotiable Instruments Act, 1881 Has Retrospective Application or Not?","authors":"Shivam Goel","doi":"10.2139/ssrn.3389795","DOIUrl":"https://doi.org/10.2139/ssrn.3389795","url":null,"abstract":"The party who commits default in payment can be sued by a payee in the civil court by filing suit for recovery of money. However, the special provision of Section 138 under the Negotiable Instruments Act, 1881 (hereinafter referred to as the NIA) was inserted with effect from 01.04.1989 vide the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. <br><br>The object of the NIA is to enhance the acceptability of the cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts. That by virtue of the Amendment Act No. 20 of 2018 in the NIA, the legislature introduced.<br><br>Section 143-A and Section 148 providing for “Power to direct interim compensation” and “Power of Appellate Court to order payment pending appeal against conviction” respectively.<br>","PeriodicalId":280037,"journal":{"name":"Law & Society: Legislation eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121711976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}