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Despite an increasing number of critiques from many commentators—abolitionists, social scientists, and fiscal conservatives among them—mass incarceration remains an ongoing crisis. Dealing with the wreckage of carceral overreach requires not just changing policies about what gets criminalized and how offenses are punished prospectively, but also unwinding the long sentences imposed during the past half- century and still being served. Among the mechanisms for decarcerating are second look acts, which a growing number of jurisdictions have passed or are considering.

Often these resentencing tools depend heavily on decisionmakers’ exercise of discretion. In rare instances, however, that discretion is constrained. Comparing two recent New York sentencing reforms, the Domestic Violence Survivors Justice Act and the 2004–2009 Drug Law Reform Acts—the former highly discretionary and the latter with a strong presumption in favor of resentencing—this Article notes the relative success rates of each statutory scheme, finding the less discretionary regime apparently more decarceratory. Critically, the exercise of discretion imposes a significant dignitary harm on applicants, who are required to prove their believability and moral worthiness to judges deciding whether to free them. As epistemic justice theory shows, those who are incarcerated and disproportionately members of marginalized identity groups face untenably difficult odds of doing so, as they are systematically discredited. In the process of inviting a judge to exercise discretion in their favor, these petitioners are often disbelieved, and the knowledge system is subsequently impoverished by discounting of petitioners’ experiences. Thus, if resentencings are going to begin to decarcerate at the rates necessary to bring the United States into line with comparable countries, and do minimal damage in the process, resentencing reforms should be categorical or presumptive rather than discretionary.

Agency delay is a pervasive problem. It occurs in a broad range of policy areas, including environmental protection, healthcare, and financial regulation. The trope of slow and inefficient government agencies has become cliché.

Statutory deadlines are one solution to the problem of agency delay. Attaching a deadline to authorize legislation seems like an obvious way to make agencies act faster. Therefore, scholars and policymakers have urged the use of statutory deadlines to spur agencies to action. They have focused on ways to more vigorously enforce statutory deadlines through negative incentives, such as hammer provisions or mandamus remedies, as well as on the effectiveness and drawbacks of negative approaches.

The current debate neglects positive incentives as another way to encourage agencies to meet deadlines. This Note argues that statutory deadlines can be a superior way of avoiding agency delay when linked to positive incentives (“carrots”) rather than negative incentives (“sticks”). The Note specifically focuses on conditional relaxation of judicial review as a promising mechanism to induce agencies to more appropriately avoid unnecessary delay. Conditional relaxation of judicial review is so promising because it accounts for the costs of litigation and judicial review in a manner that the typical negative incentives do not. This Note will review the relevant current doctrine and debate on enforcement of statutory deadlines, lay out the possible ways to attach positive incentives to statutory deadlines, and in comparing this carrot approach to deadlines to the stick approach, will show the advantages (and limitations) of positive incentives. Ultimately, the carrot approach will be most appropriate where there is a policy need for speed and when an agency faces resource constraints, though such an approach may never be appropriate when there is a strong principal-agent conflict between Congress and the relevant agency.

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo calls on courts to apply a broad range of rules of statutory construction instead of engaging in a deferential inquiry about whether an agency’s views are reasonable. Courts of appeals face the question how to apply their new interpretative responsibilities in the absence of Chevron deference. This Essay argues that courts of appeals must now apply the long- standing rule of strict construction of deportation statutes, also known as the immigration rule of lenity, which provides that ambiguities in deportation statutes be resolved to limit the sanction of deportation. This Essay shows that the Court developed the rule of strict construction of deportation statutes as a substantive check against the harsh consequences of deportation statutes. It further shows that the Court treated it as a strong substantive rule that applied to ambiguous statutes, even in situations where the agency’s position found support in its contemporaneous interpretation of the statute. By 1966, the Solicitor General as well as majority and dissenting Justices treated the rule as settled, leaving only the question whether a particular statutory provision contained an ambiguity sufficient to trigger the rule in the case before the Court. This established rule of strict construction is supported by the same justifications as the criminal rule of lenity and is further supported by unique aspects of deportation statutes, which typically have no statute of limitations and may apply retroactively. While much remains to be seen about how courts will apply their interpretive powers in the wake of Loper Bright, the rule of strict construction of deportation statutes has the pedigree of a strong substantive rule that ought to be considered fully in determining the scope of deportation laws.

Well before the Supreme Court’s decision in Loper Bright, the Solicitor General laid the groundwork for treating the outcome of the case as irrelevant for immigration law. In recent cases, the Solicitor General has argued that 8 U.S.C. § 1103(a)(1) provides a freestanding basis for deference by the judiciary due to a phrase that the Attorney General’s views are “controlling.” This Essay shows that the Solicitor General’s argument is deeply flawed. Building on textual critiques, this Essay shows that for one hundred years Congress has considered how to manage multiple executive departments administering immigration laws. From 1924 until 1952, Congress did not preclude intrabranch disagreements, and in at least one case such disagreements were presented to the Supreme Court. In 1952, Congress acted to have the executive speak with one voice and placed that power with the Attorney General in § 1103(a)(1). Until recently, the Solicitor General recognized that § 1103(a)(1) was nothing more than a method for resolving intrabranch conflicts. The Solicitor General’s new effort to turn § 1103(a)(1) into a separate basis for judicial deference to agency views has no basis in the text or history of the provision. The Solicitor General’s argument should be abandoned before it leads to a new wave of circuit conflicts about deference in immigration cases in the wake of the Supreme Court’s decision this Term overturning Chevron.

We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures “make” statutes while judges “interpret” them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between “making” and “interpreting” by embracing a type of legislation that remains overlooked and little understood: “expository” legislation—enactments that specifically interpreted or construed previous enactments.

In the most exhaustive historical study of the subject to date, this Article—the first in a series of Articles—unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels—the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century.

In the summer of 2021, a small, previously unknown hedge fund named Engine No. 1 did the unthinkable. Despite owning less than 0.0016% of the company’s stock, Engine No. 1 elected three independent directors to the board of ExxonMobil on a platform of lowering Exxon’s greenhouse gas emissions and investing in renewable energy. Engine No. 1’s successful proxy battle at the country’s largest oil and gas company came after years of efforts by some of its largest shareholders to push the company in this direction, and it succeeded only because of the support of these large institutional shareholders. This case study highlights the powerful role that activist campaigns play in corporate democracy: Motivated by the prospect of outsized returns, hedge funds like Engine No. 1 are among the few players capable of mounting effective challenges to incumbent management at publicly traded companies. Although commentators have written about this dynamic, no scholarship has yet focused on the significant second-order effects that hedge fund activism can have on issues like climate change.

In October 2023, the Securities and Exchange Commission (SEC) adopted a new rule to shorten the Schedule 13D filing window under the Williams Act from ten days to five. Although justified as necessary given the technological advances that have occurred since the Act’s passage in 1968, shortening the filing window makes it more difficult for activists to engage in campaigns at publicly traded companies, thereby diminishing the power of the only actors within the world of corporate democracy capable of pushing management to respond to shareholder preferences and tipping the balance of power towards management. Thankfully, the Commission is not without options to address this difficulty. This Note proposes that the SEC create a new filing—Schedule 13I—which would permit activists who are not seeking control, but merely influence over corporate policy, the full ten-day filing window. Doing so is well within the Commission’s statutory authority. Indeed, given the dramatic shifts in the corporate governance landscape that have occurred since the passage of the Williams Act, and the fact that the Act was explicitly envisioned as favoring neither management nor activists, creating this new filing Schedule would help regain the balance which Congress so carefully set when it passed the Act, thus achieving a regulatory structure more in line with its purpose. At a time when the functioning of corporate democracy implicates both value-creation and the satisfaction of shareholder preferences on the defining issues of our era, the Commission must consider changes to invigorate corporate democracy.

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates.

The authors find that textual gerrymandering—suppressing some relevant texts while picking apart others, as well as cherry-picking context—has been pervasive. Texts and contexts are chosen to achieve particular results—without any law-based justification. Further, this Article shows that, by adopting the seemingly benign “we are all textualists now” position, liberals as well as conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) even as the Court rejects the production economy (the legislative authors’ meaning).

Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean John F. Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.” This Article concludes by affirming the republican nature of Madisonian constitutional design and situating the Court’s assault on republican evidence as part of a larger crisis posed by populist movements to republican democracies today.

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half Terms. The Article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The Article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third compare statutes that regulate entirely unrelated subject areas. Moreover, more than a few of the Court’s analogies involve generic statutory phrases—such as “because of” or “any”—whose meaning is likely to depend on context rather than some universal rule of logic or linguistics.

This Article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural choices. The Article critiques this judicial imposition of drafting conventions on Congress—noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice—e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where judicial action is necessary to harmonize two related statutes with each other.

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

A substantial academic literature considers how agencies should interpret statutes. But few studies have considered how agencies actually do interpret statutes, and none has empirically compared the methodologies of agencies and courts in practice. This Article conducts such a comparison, using a newly created dataset of all Internal Revenue Service (IRS) publications ever released, along with an existing dataset of court decisions. It applies natural language processing, machine learning, and regression analysis to map methodological trends and to test whether particular authorities have developed unique cultures of statutory interpretation. 

It finds that, over time, the IRS has increasingly made rules on normative policy grounds (like fairness and efficiency) rather than merely producing rules based on the “best reading” of the relevant statute (under any interpretive theory, like purposivism or textualism). Moreover, when the IRS does focus on the statute, it has grown much more purposivist over time. In contrast, the Tax Court has not grown more normative and has followed the same trend toward textualism as most other courts. But although the Tax Court has become more broadly textualist, it prioritizes different interpretive tools than other courts, like Chevron deference and holistic-textual canons of interpretation. This suggests that each authority adopts its own flavor of textualism or purposivism. 

These findings complicate the literature on tax exceptionalism and the judicial nature of the Tax Court. They also inform ongoing debates about judicial deference and the future of doctrines like Chevron and Skidmore deference. Most broadly, they provide an empirical counterpoint to the existing theoretical literature on statutory interpretation by agencies.