This essay offers a legal framework for considering the conformity of general measures of economic policy with international investment treaties. While the framework could apply to historical, ongoing, and future instances of impugnable economic measures, this essay does not speculate on potential results from applying the legal framework to the facts of any particular episode.

Instead, I argue that most nineteenth-century courts shaped the right to bear arms around the contemporary popular understanding of the right. In other words, as the popular consensus about the appropriate scope of the right to bear arms changed over time, courts evolved their jurisprudence on the right to bear arms to reflect this popular shift. Courts only struck down weapon control laws when those laws fell too far outside the contemporary popularly accepted scope of the right.

Since Padilla, a number of lower courts have held that such general court warnings prevent a defendant from proving prejudice and prevailing on an ineffective assistance of counsel claim where there might otherwise be a Padilla Sixth Amendment violation.

This Note argues that those rulings mistakenly conflate the role of the court in a Fifth Amendment plea colloquy and the role of counsel under the Sixth Amendment and, further, that they misread the clear directives of Padilla. In the plea context, the court and defense counsel serve complementary but distinct functions in our constitutional structure; neither can replace the other, and the failure of either court or counsel constitutes a breakdown in our system. Circumscribing Padilla’s requirements by allowing plea colloquies to “cure” the prejudice created by Sixth Amendment Padilla violations is problematic because the Fifth Amendment plea colloquy provides significantly less protection to criminal defendants. Thus, the substitution of the plea colloquy for advice from counsel will substantially undercut the Padilla decision.

Although scholars agree on this general outline,[1] they differ regarding what the Code really accomplished. Writing in 1948,[2] Roscoe Pound argued that the characteristics of the modern Federal Rules of Civil Procedure “could have been attained at least eighty years [earlier] if Field’s Code of Civil Procedure had been developed and applied in its spirit instead of the spirit of maintaining historical continuity.”[3] Pound particularly praised the “equitable shortcuts” of the Code.[4]

[1] See, e.g., Lawrence Friedman, A History of American Law 293-97 (3d. ed., 2005); Robert W. Millar, Civil Procedure of the Trial Court in Historical Perspective 54-55 (1952).

[2] For the centennial of the Field Code, Professor Alison Reppy organized a conference on the Code at New York Law School. See David Dudley Field: Centenary Essays (Alison Reppy ed., 1949) [hereinafter Centenary Essays]. The presentations typically celebrated more than they clarified, however. The presenters frequently relied on Henry Martyn Field’s biography of his brother, Henry Martyn Field, The Life of David Dudley Field (1898) [hereinafter Life of Field], and they occasionally retain Henry’s extreme rhetoric. For instance, Reppy concluded that Field “believed that with righteousness on his side, he would gather strength as he fought the battle to cut a passage through the labyrinth of judicial myth and precept and ‘cast up a highway that should lead straight to the Temple of Justice.’” Alison Reppy, The Field Codification Concept, in Centenary Essays, supra, at 52 (quoting Life of Field, supra, at viii).

[3] Roscoe Pound, David Dudley Field: An Appraisal, in Centenary Essays, supra note 2, at 14.

[4] Id. The two main drafters of the FRCP, Charles Clark and Edson Sunderland, largely agreed. See Charles E. Clark, Code Pleading and Practice Today, in Centenary Essays, supra note 2, at 55; Edson R. Sunderland, Modern Procedural Devices, in Centenary Essays, supra note 2, at 83.

[1]See infranotes 75-77 and accompanying text. See alsoArlene F. Lee et al., Child Welfare League of America,The Impact of the Adoption and Safe Families Act on Children of Incarcerated Parents PAGE (2005), available at www.fcnetwork.org/Resource%20Center/cop_pubimpact.pdf(discussing studies which indicate a significant increase in the number of termination cases involving incarcerated parents since the adoption of the Adoption and Safe Families Act in 1997; one study estimates that the increase is as high as 250%).

[2]Pub. L. No. 105-89, §103, 111 Stat. 2118-20 (codified as amended in 42 U.S.C. §675(5)).

[3]Steve Christian, Nat’l Conference of State Legislatures, Children of Incarcerated Parents PAGE (2009), available at www.ncsl.org/documents/cyf/childrenofincarceratedparents.pdf.See also Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321, 348-51 (2005) (noting that average prison sentences are longer than the twenty-two-months).

[4] See infrapp. 29-31.

[1]Xavier de Souza Briggs, Susan J. Popkin & John Goering, Moving to Opportunity: The Story of an American Experiment to Fight Ghetto Poverty 42 (2010).

[2]United States Housing Act of 1937, 42 U.S.C. § 1437f(a) (2006).

[3]Alex F. Schwartz, Housing Policy in the United States 175 (2006).

[4] Judith D. Feins & Rhiannon Patterson, Geographic Mobility in the Housing Choice Voucher Program, 8.2 Cityscape 21, 22 (2005).

[5] See infra Section I.A(3).

[6]Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 101(c)(6), 88 Stat. 633 (codified as amended at 42 U.S.C. § 5301(c)(6) (2006)).

[7]Fair Housing Act, 42 U.S.C. § 3608(e)(5) (2006).

[8]Fair Housing Act, 42 U.S.C. § 3604 (2006) (as interpreted at Section 8 Housing Choice Voucher Program – Demonstration Project of Small Area Fair Market Rents in Certain Metropolitan Areas, Discussion of Comments, and Request for Participants, 76 Fed. Reg. 22122, 22124 (Apr. 20, 2011)).

This “revolution” in electricity regulation occurred during a twenty-year period between 1980 and 2000. Surprisingly, given the scope and significance of the reforms, the changes were initiated largely through rulemaking and adjudication by the Federal Energy Regulatory Commission (FERC or “the Commission”), rather than congressional legislation. Although Congress ratified the Commission’s changes to the regulatory structure in both 1992 and 2005, Congress did not play a leading role in restructuring the electricity industry. Instead, the changes were the result of FERC’s reinterpretation of what was permitted and required by the basic standards in the 1935 version of the FPA —“just and reasonable” and “undue discrimination” or “undue preference.”

This paper argues that electricity restructuring provides an excellent example of politically legitimate Administrative constitutionalism or statutory reinterpretation. By acting pursuant to its delegated authority, within its established jurisdiction, and in a way that reflected Congressional preferences commission, the Commission exercised its authority in a politically legitimate fashion. Moreover, by doing so incrementally, it promoted deliberation, both within the Commission and with stakeholders in industry and Congress, about how its regulations should evolve. Of course this deliberation cannot give the agency the power to do what a statute says it cannot. But where a statute is vague or unclear, a robust dialogue and the involvement of outside stakeholders mitigate the concern about agencies “run amok.” Indeed, combining robust agency deliberation with its experience and expertise should promote effective regulation that is responsive to the needs of industry and the policy preferences of Congress. This type of regulatory change is a desirable means of addressing statutory ambiguity and should be accepted, both by courts and in the scholarly understanding of the administrative state.

Justice Scalia, A Matter of Interpretation[1]

How accurate is Justice Scalia’s characterization of American legal culture? Has runaway purposivism erased the distinction between statutory text and legislative history? Most scholars of statutory interpretation say no—although at one point legislative history seemed poised to dominate statutory interpretation, Justice Scalia and othertextualists have succeeded in defending the primacy of text.

In arriving at this answer, the intellectual conversation has focused onstatutory interpretation at the Supreme Court. But Justice Scalia’s assertion sweeps far beyond the Court; it is a claim about “legal culture”. So the question remains: how has legislative history fared outside of the Supreme Court?

In this paper, I aim to begin answering a small piece of this question by investigating the evolution of the use of legislative history in the circuit courts. I counted all of the citations to legislative history made by the circuit courts between 1950 and 2006. This data reveals the degree to which the circuit courts’ usage patterns either confirm or reject Justice Scalia’s claim about the prevalence of legislative history in statutory interpretation.

[1]Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 18-23 (Amy Gutman ed., 1997).