Cornell Law Review

Article

Chevron as Construction

Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center

Cass R. Sunstein, Robert Walmsley University Professor, Harvard University

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand…

Jul 2020

Article

Legitimate Interpretation—Or Legitimate Adjudication

Thomas W. Merrill, Charles Evans Hughes Professor, Columbia Law School

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if…

Jul 2020

Introduction: Reviving the Thirteenth Amendment

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. What has been the legal significance…

Sep 2019

The Thirteenth Amendment: An Epilogue on the Questions of Reach, Freedom, and Equality

Michele Goodwin

The Banality of Slavery The Thirteenth Amendment served as a corrective to a vile, but strangely normalized, practice—human slavery. An institutionalized practice so common that at one point 40% of New York’s inhabitants were slaves.1Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Modern Incarceration, 104 CORNELL L. REV. 899, 1021(2019). Thus, on one hand, slavery’s reach can…

Sep 2019

New Textualism and the Thirteenth Amendment

Leah M. Litman, Assistant Professor of Law, University of California Irvine School of Law.

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment.1Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899 (2019)  In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed…

Sep 2019

Thirteenth Amendment Reflections on Abortion, Surrogacy, and Race Selection

Dov Fox

Pamela Bridgewater’s Breeding a Nation: Reproductive Slavery, the Thirteenth Amendment, and the Pursuit of Freedom never had a chance.1 PAMELA D. BRIDGEWATER, BREEDING A NATION: REPRODUCTIVE SLAVERY, THE THIRTEENTH AMENDMENT, AND THE PURSUIT OF FREEDOM (South End Press 2014) . South End Press went under shortly after publishing it in 2006, forcing the book out…

Sep 2019

The Thirteenth Amendment and Self-Determination

Seth Davis, Professor of Law, University of California, Berkeley School of Law.

Slavery in the American South was a system of government that denied self-determination to Black communities. The Thirteenth Amendment to the U.S. Constitution promised that “[n]either slavery nor involuntary servitude . . . shall exist within the United States.”1 U.S. CONST. amend. XIII, § 1. Today, Black communities and other subordinated communities are demanding self- determination and community…

Sep 2019

The Thirteenth Amendment in Legal Theory

George Rutherglen, John Barbee Minor Distinguished Professor of Law, University of Virginia.

Introduction Unique among constitutional amendments, the Thirteenth Amendment has been eclipsed by its own success. It gave rise directly to the Civil Rights Act of 1866,1Act of April 9, 1866, § 1, 14 Stat. 27 (1866). which was enacted under Section 2 of the Amendment; and the rights conferred by the 1866 Act, in turn, served as…

Sep 2019

Property, Dignity, and Human Flourishing

Gregory S. Alexander

Human flourishing and human dignity are not empty phrases. They have real content, and they matter in real lives. The facts are that we want to live flourishing lives and we want to live lives of dignity. We cannot live such lives, however, unless certain conditions are fulfilled. Among these conditions, flourishing is personal autonomy,…

May 2019