While we really avoided Fight the Hypo during what was a very exhausting end of the semester (yes, I realize plenty of law students kept blogging during that time; they’re better than us) right now we’re really figuring out where this blog goes next.

Over the next 6 weeks or so, we’ll be unveiling some design tweaks and some new posts for you.

Hang in there with us as we figure out how to make this thing work.

Thanks and hope you’re enjoying your summer so far.

• Jackopierce, Bringing on the Weather
• The Frames, Burn the Maps
• The Whitest Boy Alive, Dreams
• Unwed Sailor, The Faithful Anchor
• Garden State Motion Picture Soundtrack
• Ray Lamontagne, Gossip in the Grain
• Radiohead, In Rainbows
• Denison Witmer, Philadelphia Songs
• Scrubs Soundtrack (vol 1)
• Jack Johnson, Sleep Through the Static
• Kings of Convenience, Versus
• Coldplay, Viva La Vida or Death and All His Friends

Just throw it on shuffle and you’re good to go for a weekend. What’s your study music playlist consist of these days?

But here’s where trust and estates came to the rescue. Nevada is a community property state, meaning that assets acquired after the marriage are presumed to have joint ownership. Since the property retains the character of the locale in which it was acquired, even the tried plot device of them both being from New York wouldn’t matter.  So rather than wading through another hour’s worth of contrived blather, if the plot had cleaved to the true nature of the law, they could have gotten a quickie divorce, split the loot, and gone about their merry way. Suck on that Hollywood! Knowledge of the law (and good taste) smash another one of your intellectually insulting piles of crap!

Is this how most lawyers feel? If you can put aside the recession and layoff news, what do you think? Have you heard similar messages from lawyers you know?

This week: Counseling Roundtable for Evening Students
Thursday, March 19th
5:30 p.m.
Room 305
Be sure to attend this year’s ELSA Roundtable discussion with the CUA Counseling Center for tips on how to manage the stress, anxiety, and other concerns many evening students experience. Refreshments and food will be served.

Oh wait. Did I misread that? Sorry, just assumed that evening students knew more about… well… Anyway, hopefully the session is helpful.

Please Repeat the Question from Amanda Bakale on Vimeo.

Say what? Law.com, where the link above takes you, suggests this confirms what many have suspeected for sometime, namely that Souter is seriously weary of being a Justice and seriously interested in retiring. (Compare to reports suggesting 89-year-old John Paul Stevens, some 19 years older than Souter, is still relishing his seat on the Court.)

Thankfully we have leadership in Washington that has really learned to work together to create a climate that would sustain a constructive, non-rancorous and efficient confirmation process.

Ok. Maybe not.

So, inquiring minds want to know. At some point President Obama will be appointing a new Justice. What sort of judge would he appoint? A Scalia of the left, a liberal lion whose passion for living Constitution could compete with Scalia’s passionate defense of texualism? A young lawyer? A current judge? A moderate in temperament if reliably “liberal” vote?

I suspect that he’ll go with the George W. Bush route and pick someone who has not thrown many bombs in their career but would generally rule in line with a certain ideological. That’s the “safe” way to go. It may result in the best person being picked. But it results in competent jurists who check off several boxes on the political checklist.

(Hopefully, the nominee’s taxes are in order. Sheesh.)

As I read for this week (the cases deal with court applications of Chevron deference to agency statutory interpretation), I wonder various approaches of judicial statutory interpretation have any relative benefit in terms of incenting Congress to write better, clearer, more well-reasoned laws in the first place.

As far as I can tell there are two approaches on the Court right now.

The majority approach is expressed most commonly by Justice Stevens, who wrote Chevron. There are basically two levels of deference to agency action for Stevens. Chevron deference applies to formal rulemaking and adjudicating by agencies where the statutory terms at issue are ambiguous. Agency action receives deference so long as it is reasonably. But informal processes - letters on tariffs from the Customs Service - receive Skidmore deference, meaning the agency view is a factor in determining reasonableness of agency action, but is not necessarily authoritative.

Then you have Justice Scalia who generally argues that delegations of interpretive and rulemaking power to agencies is rather broad and should generally be given Chevron deference in all cases of agency interpretation, whether formal rulemaking or informal guidance. Put another way, so long as the action falls within the legislative grant of power, it deserves Chevron deference. “Skidmore is an anachronism.” Of course, this is only if the statutory terms are ambiguous. Where Scalia perceives Congress to have spoken clearly, judicial review of agency action is much stricter.

The Stevens approach gives the Court a broader role in reviewing agency actions. The Scalia approach looks primarily at the statute and defers where the statute is perceived to be clear. (Obviously, both views are infused with political considerations and biases.)

I haven’t decided which is “better” in part because the two approaches aren’t necessarily as clear-cut as this post suggests. I like the Stevens approach because it provides an increased level of oversight for informal rulemaking that happens at agencies. (The irony here is not lost on me. I realize the inconsistency in wanting greater review of unelected bureaucrats by unelected juges.) I like the Scalia approach because it gives the court a smaller role in review of political branch activities. In part this allows complex regulatory schemes to include formal and informal rulemaking with little fear of judicial tampering.

The Scalia approach worries me primarily in the way that it creates a gap that Congress must step up to fill. Congress must exercise more oversight and where, the Scalia/texualist approach results in decisions like the one I wrote about the other week, where the literal meaning of terms precludes an agency from preventing fraud, Congress must step in to write better law and provide clearer guidance.

I’m not convinced Congress is capable of doing that right now. Yes, yes I realize this is a democracy. Voice of the people. All those truisms. But practically can Congress pass good, clear laws that deal with pressing issues facing our nation.

My question is whether the Scalia approach, if it were adopted in the majority of cases, would create an incentive for Congress to write laws that were clearer and write them more regularly. If so, is that a good thing? The flip side of that question is whether the Stevens approach creates a disincentive for Congress to use language more precisely and seek to update statutes more regularly because they can simply rely on courts to clean up after them.

To me, this question gets to the heart of the balance of powers in our constitutional system. On the one hand lawmaking is a process of argument and compromise, resulting in ambiguous terms and rules. However, this process, on the other hand, seems to allow Congress to avoid making hard choices about tough issues. Of course, that’s my underlying assumption of this entire post - that asking Congress to write good law that tackles hard challenges is asking too much.