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01/02/2023

William Eskridge, Brian Slocum & Kevin Tobia: Textualism's Defining Moment
Michael Ramsey

William N. Eskridge (Yale Law School), Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Kevin Tobia (Georgetown University Law Center; Georgetown University Department of Philosophy) have posted Textualism's Defining Moment (70 pages) on SSRN.  Here is the abstract:

Textualism promises simplicity: Focus on the text, the whole text, and nothing but the text. But legal interpretation is not so simple. Now that textualism is the Court’s dominant interpretive theory, every interpretive dispute implicates textualism, and the theory’s inherent complexities have begun to surface. This Article is the first to document the major categories of theoretical choices that regularly divide modern textualists, and for which textualism currently provides no clear answers.

As we demonstrate, there are at least twelve analytical steps in modern textualism. Textualists’ failure to adequately explain their approach to these steps renders the methodology hard to apply, as well as less constraining and predictable. Assuming that the newest textualism’s legitimacy is grounded in language and the rule of law, we suggest some resolutions for the most serious debates. Textualism has ascended as the Court’s dominant theory of statutory interpretation, but its success and legacy depend on whether its torchbearers are prepared to better define the theory and commit to it.