The Supreme Court promulgates rules of procedure pursuant to the Rules Enabling Act. This statute provides that “Such rules shall not abridge, enlarge or modify any substantive right.” The Court has not taken the opportunity to refine the precise contours of the Act and has never invalidated a rule under it. This article takes up that enterprise, articulating an understanding of the Rules Enabling Act that will clarify the scope of the Supreme Court’s rulemaking authority.
The familiar ideal is that the remedy should “fit the wrong”. This article reveals that in copyright law, the remedies actually create the wrong. Conducting a novel study of infringement claims and case law involving statutory damages, the author explains how plaintiffs routinely employ enhanced damage claims to threaten and subdue alleged infringers into making settlement concessions. The article concludes that copyright’s statutory damage framework is a remedy in dire need of reform and provides a number of substantive and procedural policy suggestions.
The article argues that courts unjustifiably limit public school liability under both Title IX and the Fourteenth Amendment to students who suffer sexual, physical, and verbal abuse and harassment. As a remedy, the article proposes changes to the assessment of Fourteenth Amendment and Title IX claims that abandon misconceptions, increase schools’ potential for liability, and promote the development in schools of processes for preventing, discovering, and addressing students’ harms.
Much in the field of statutory interpretation is predicated upon “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This essay attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.
The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, expanded the Court’s Sixth Amendment sentencing doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt. This reading means dramatic changes for several state sentencing systems and federal sentencing as well.