« Gerard Bradley: Moral Truth and Constitutional Conservatism
Michael Ramsey
| Main | Sanchez v. Mayorkas: Are We All Textualists Now?
Michael Ramsey »

06/07/2021

Sree Sudaarshan Sreekumar: Abstractions over Text?
Michael Ramsey

Sree Sudaarshan Sreekumar (University of London - students) has posted Abstractions over Text?: Groping in Daylight in Search of the Switch (29 pages) on SSRN.  Here is the abstract:

Independence is a virtue one takes time to acquire. But the judiciary – entrusted with deciding cases and controversies – is allowed to posit no excuse for its precarious institutional posture. One of the ways judges compromise judicial independence – and in doing so shockingly adorn the veil of a legislator – is by interpreting statutes whimsically. This Article, therefore, seeks to shed light on textualism – a method of interpreting legal texts – and its principal tenet, context. This Article goes on to critique the traditional approaches to statutory interpretation – literalism, the golden rule, the mischief rule, and purposivism – on the primary basis that they are flawed and unworkable. They rob statutes of their textual meaning and strip them of their democratic sheath. It exposes literalism’s flaw – the plain-meaning inquiry and its tendency to constrict meaning. The author suggests an alternative test – the ‘linguistic reasonableness’ test. As regards the golden rule, this Article analyzes its tripartite exceptions laid down in the oft-cited Grey v Pearson. The author examines one of the exceptions – the absurdity doctrine – by conducting two analyses: the OPLA and SSA analyses. This Article then discusses the mischief rule and purposivism. In the author’s opinion, they bear a distinction without a difference. Next, the author offers nine hypotheticals with interpretive problems, resolving each as a textualist would. This Article concludes by expressing misgivings about the undisciplined and capricious posture of the judiciary in statutory interpretation, and warn against such improvidence.