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11/15/2022

Tara Grove: The Misunderstood History of Textualism
Michael Ramsey

Tara Leigh Grove (University of Texas School of Law) has posted The Misunderstood History of Textualism (forthcoming, Northwestern University Law Review, Vol. 117, No. 4, 2023) (65 pages) on SSRN.  Here is the abstract:

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a “literal” and “wooden” “plain meaning school.” More surprisingly, modern textualists later accepted this account—a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the “literal” old plain meaning school, modern textualists defined “textualism” so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on “conventional wisdom.” Second, the analysis suggests that theorists should set aside debates over “literalism” in statutory interpretation. The question is not—and has never been—whether interpreters should look to context but rather which context they should consider.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week.")