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09/02/2014

Judge Katzmann Takes on Justice Scalia
Michael Ramsey

Judge Robert Katzmann (U.S. Court of Appeals, Second Circuit) has a new book Judging Statutes (Oxford Univ. Press 2014).  From the publisher's description: 

  • Major but concise work by a distinguished federal judge--and the only one with a Ph.D. in political science--on a highly contested issue
  • Offers a powerful challenge to Antonin Scalia's textualist approach
  • A spirited and compelling defense of why judges must look at the legislative record behind a law--and not merely the statute itself
  • Of interest to concerned citizens, law students, government students, lawyers, judges, and legislators

I am not convinced that a textualist approach requires the strict blindness to legislative history on which Justice Scalia insists -- although it surely requires that that the legislative history be used for the purpose of finding the text's meaning, not for contradicting it.  More notably, though, this appears to be a debate within a methodology of (statutory) originalism.  Why look at the "legislative record" unless you are interested in what the enactors meant to accomplish?  As noted here previously, originalism isn't controversial when we are talking about statutes.

(Via How Appealing).