Volume 75, Number 1

April 2000

Interpretive Choice

Adrian Vermeule

How should judges choose doctrines of statutory interpretation? Judges explicitly or implicitly choose interpretive doctrines-canons of construction, rules governing the admissibility and weight of extrinsic sources, and rules about the force of statutory precedent. Interpretive choice presupposes both a theory of statutes’ political authority and an empirical assessment of the competence of interpreters, the benefits of rules and standards, and the interaction of lawmaking institutions. In this Article, Professor Adrian Vermeule notes that all this is widely accepted, but argues that scholarship to date has overlooked the central dilemma of interpretive choice: The empirical assessments needed to translate theories of statutes’ authority into operative doctrine frequently exceed the judiciary’s capacity. Many of the relevant questions are empirical but unanswerable, at least at acceptable cost; moreover, judges can neither conduct necessary experiments nor successfully assimilate information provided by outside institutions. Judges faced with problems of interpretive choice must therefore apply standard decisionmaking strategies of choice under irreducible empirical uncertainty, strategies derived from decision theory, rhetoric, and other disciplines. This Article applies these strategies to three standard doctrinal problems-the admissibility of legislative history, the choice of interpretive canons, and the force of statutory stare decisis. It concludes that judges should exclude legislative history, should pick between canons rather than debating their relative merits, and should observe an absolute rule of statutory stare decisis. In short, judges should embrace a formalist approach to statutory interpretation, one that uses a minimalist set of cheap and inflexible interpretive sources.

The Emotional Economy of Capital Sentencing

Stephen P. Garvey

What influences the emotional responses a juror has toward a capital defendant? Do a juror’s emotions affect how she votes? The prevailing wisdom claims that several features of the capital-trial penalty phase create emotional distance between jurors and defendants, which in turn increases the likelihood of a death sentence. In this Article, Professor Garvey surveys the emotional economy of capital sentencing, examining these questions and scrutinizing the prevailing wisdom.


Women and the Constitution: Where We Are at the End of the Century

The Honorable Martha Craig Daughtrey

Madison Lecture

In this Madison Lecture, Judge Martha Craig Daughtrey addresses the evolution of the women’s rights movement and the Equal Rights Amendment (ERA). Judge Daughtrey traces the history of the ERA from its passage by Congress through its eventual failure during the state ratification process, and considers the parallel development of an equal rights jurisprudence based on the Equal Protection Clause of the Fourteenth Amendment, particularly noting the successes of Justice Ruth Bader Ginsburg in arguing cases before the Supreme Court. After examining this jurisprudence, as well as ensuing changes in social mores and the composition of the Court Judge Daughtrey asks whether a renewed effort to pass and ratify the ERA is necessary.


The Distinction Between Legislative and Adjudicative Decisions in Dolan v. City of Tigard

Inna Reznik

In Dolan v. City of Tigard, the Supreme Court announced a new heightened scrutiny standard for exactions, holding that the exaction must be roughly proportional to the harm the development causes. The Court proceeded to limit the application of the “rough proportionality” standard to adjudicative, and not legislative, land use decisions, reasoning that the risk of municipal “extortion” is much greater in the adjudicative context. In this Note, Inna Reznik surveys the lower courts applying Dolan and finds that there is much confusion over the legislative/adjudicative distinction. She argues that it is difficult to draw a line between legislative and adjudicative land use decisions, and that the distinction does not solve the extortion problem, which is just as likely to occur in the legislative context. Looking to the scholarship of Carol Rose and Vicki Been, the Note concludes that the Court should develop a new exactions standard that identifies those situations with the potential for government overreaching, specifically those in which the landowner has not had the opportunity of voice or exit.

Eleventh Amendment Immunity in Bankruptcy: Breaking the Seminole Tribe Barrier

Troy A. McKenzie

In many bankruptcies, a state will be included among the creditors seeking payment from the debtor; the debtor will often, in turn, have claims against the state. In this Note, Troy McKenzie analyzes the limitations on bankruptcy court jurisdiction over claims involving states as a result of the Supreme Court’s interpretation of the Eleventh Amendment in Seminole Tribe v. Florida. He suggests that the courts and Congress still possess tools to minimize those limitations. First, he argues that the most important precedent on Eleventh Amendment sovereign immunity in bankruptcy, Gardner v. New Jersey, supports the conclusion that, when a state files a claim against a debtor, bankruptcy courts retain jurisdiction over any proceeding initiated by the debtor-whether transactionally related to the state’s claim or not-that must be resolved in order to adjudicate the state’s claim. Second, because a bankruptcy court’s ability to remedy some state violations of bankruptcy law is limited when the state has not filed a claim against the debtor, McKenzie argues that Congress should give states bankruptcy related incentives to waive their sovereign immunity in bankruptcy cases. In exchange for the preferential treatment of certain state claims afforded by the Bankruptcy Code, Congress may require states to enact a waiver of sovereign immunity in bankruptcy in the interest of securing the orderly and equitable operation of the national bankruptcy system.

Exploding the Superpredator Myth: Why Infancy is the Preadolescent’s Best Defense in Juvenile Court

Lara A. Bazelon

In this Note, Lara Bazelon advocates the implementation of a reformulated infancy defense by juvenile courts. The defense would create a protective presumption for juveniles ages seven to eleven who are charged with serious offenses. This presumption would require the state to prove that the charged juvenile had both the capacity to possess and was in possession of the charged crime’s requisite mens rea. The defense would grant similar protection to juveniles over the age of eleven who could demonstrate lack of capacity sufficient to justify such a presumption. In defense of her proposition, Bazelon describes the development of the infancy defense and critiques the primary justifications behind its erosion, including the Rehabilitation Theory, the Procedural Policing Theory, and the Demarcation Theory. She analyzes the ongoing trend towards treating juveniles as “miniature adults,” the emphasis on punishment over rehabilitation in juvenile courts, and the psychological underdevelopment of juveniles as it relates to criminal behavior. Bazelon concludes by proposing a model statute that recognizes and attempts to account for the unique mental state of juveniles who commit serious offenses.