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05/20/2017

University of Chicago Law Review Symposium: "Developing Best Practices for Legal Analysis"
Michael Ramsey

In the current issue of the University of Chicago Law Review, a symposium on Developing Best Practices for Legal Analysis.  Of particular originalist interest:  Lawrence B. Solum, Originalist Methodology (84 U. Chi. L. Rev. 269 (2017)).  Here is the introduction:

This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.

(Also available in final form on SSRN here.  This is the final version of the draft noted on this blog here.)

Other contributions to the symposium include Curtis Bradley, Doing Gloss (discussing methodology of using historical practices to interpret the Constitution) and essays on textualist/formalist statutory interpretation by Frank Easterbrook (The Absence of Method in Statutory Interpretation) and Abbe Gluck (Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do).