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Showing papers in "Virginia Law Review in 1988"


Journal ArticleDOI
Eskridge1, N William
TL;DR: The role of a judge in the interpretation of a statute has been studied in positive and normative legislation theory as mentioned in this paper, where a court's role is to unearth and enforce the original intent or expectations of the legislature that created the statute.
Abstract: A N IMPORTANT QUESTION of positive and normative legislation theory is what role courts should assume when they interpret statutes (as opposed to the Constitution and the common law). One can imagine the range of roles as a continuum. At one pole is an \"archeological approach,\" in which a court's role is to unearth and enforce the original intent or expectations of the legislature that created the statute. Under this approach, statutory interpretation is an effort to discern the original answer put into the statute. At the other pole is a \"free inquiry approach,\" in which the court's role is to reach the best result, formally unconstrained (though perhaps influenced or persuaded) by the statute's text and legislative history. These two poles represent different aspirations for statutory interpretation. The archeological approach appeals to formal legitimacy (the nonelected judge is not exercising any discretion but is merely carrying out the will of the majoritarian legislature), while the free inquiry approach appeals to functional legitimacy (justice or good results).1 Traditional theories of statutory interpretation take something close to an archeological approach, though without admitting that good results are thereby sacrificed. 2 Traditional theorists accomplish this feat by assuming (with varying degrees of explicitness) a

93 citations


Journal ArticleDOI

85 citations




Journal ArticleDOI
TL;DR: In this paper, a model of the role that transaction costs play in the economic theory of legislation is presented, emphasizing the role of transaction costs in the "public choice" model.
Abstract: IN the wake of the Coase Theorem,' transaction costs have come to play the pivotal role in economic discourse as it relates to legal issues. The Coase Theorem posits that, absent transaction costs, the efficient outcome will occur regardless of the choice of legal rule.' In a wide variety of contexts, therefore, the quest to formulate efficient rules focuses on the nature of the transaction costs that hamper the parties' ability to contract effectively among themselves. This essay presents a model of the role that transaction costs play in the economic theory of legislation.3 By emphasizing the role of transaction costs in the "public choice" model, this exercise seeks to develop a normative argument about how consti-

59 citations






Journal ArticleDOI
TL;DR: In this paper, the international law of state responsibility and an international regulatory agency have roles to play in the upgrading of safety design and construction of nuclear plants, which can reduce the risk of nuclear accidents.
Abstract: Should nations that export nuclear power plants to developing countries be potentially liable to the people of those countries for catastrophic accidents? Risk of accident can be reduced if international law compels upgrading of safety design and construction of nuclear plants. Both the international law of state responsibility and an international regulatory agency have roles to play. Tags: Nuclear accidents, State responsibility, Territorial principle, Denial of justice, Philippine power plant at Na-

13 citations



Journal ArticleDOI
TL;DR: In the clamor for short-term reform, the overall social effects are often ignored in favor of more insistent, and more parochial, considerations as mentioned in this paper, which is not the right response to the blunders of the present malpractice system.
Abstract: or theoretical. They increase the capacity of the society to provide needed goods and services for all its citizens. In the clamor for short-term reform, the overall social effects are often ignored in favor of more insistent, and more parochial, considerations. Two wrongs do not make a right. State-mandated no-fault statutes are not the right response to the blunders of the present malpractice system.

Journal ArticleDOI
TL;DR: Even advocates of a deduction disagree over its rationale, and some commentators argue that there should be no deduction as discussed by the authors, and there is also disagreement on what should count as a charity for purposes of a tax deduction.
Abstract: ALTHOUGH the deduction for charitable contributions has long Z-tbeen a part of the income tax,' its desirability is still contested. Even advocates of a deduction disagree over its rationale, and some commentators argue that there should be no deduction.2 There is also disagreement on what should count as \"a charity\" for purposes of a deduction. Economists question the deduction for gifts to certain










Journal ArticleDOI
TL;DR: In the first year of law school, a surprisingly small percentage of the material actually presented to first-year students focuses explicitly on defining and communicating "lawyerly" reasoning skills as discussed by the authors.
Abstract: Law professors often tell first-year students that they should concentrate less on learning the rules of a particular subject, such as property or contracts, and more on the elusive goal of "thinking like a lawyer."' Entering students, whose impressions of law school may have been shaped by popular culture, often believe their teachers.2 Yet despite this seeming consensus on the aims of law school's first year, a surprisingly small percentage of the material actually presented to first-year students focuses explicitly on defining and communicating "lawyerly" reasoning skills. A typical property casebook, for example, devotes almost no attention to identifying techniques that would help the student master the subject through legal reasoning.3 Accordingly, many students rightfully complain that they are