Textualism

2
Book review
81.3
The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution
Michael Stokes Paulsen
Distinguished University Chair and Professor of Law, University of St. Thomas School of Law.

My thanks to Gary Lawson, Larry Solum, and Sherif Girgis for comments on fragments of early drafts. (Do not blame them for what I say.)Akhil Amar is an old and dear friend. We were roommates and constitutional law sparring partners as students at Yale Law School in the early 1980s. We disagreed wildly and occasionally vehemently—yet somehow still cheerfully—over many things. We continue to disagree over a great many things today—including (as this review demonstrates) nearly everything in his recent book. As noted below, I have reviewed two of Akhil’s other books highly favorably. See note 3. I hope he will forgive me this unfavorable— but still cheerful—review, which I offer in the same spirit as our dorm-room screaming matches thirty years ago. (You told me I could let you have it, if I thought you deserved it, Akhil. Well, here it is!)

Constitutional Law Statutory Interpretation Textualism
Print
Comment
84.4
The Label Test: Simplifying the Tax Injunction Act after NFIB v Sebelius
Brett J. Wierenga
BA 2014, Hillsdale College; MSc 2015, University of Oxford; JD Candidate 2018, The University of Chicago Law School

In National Federation of Independent Business v Sebelius (“NFIB”), the Supreme Court maintained both its jurisdiction over the case and the constitutionality of the Affordable Care Act (ACA) by threading the needle between the Anti-Injunction Act (AIA) and Congress’s taxing power under the Constitution.

Affordable Care Act Statutory Interpretation Tax Law Textualism
Print
Article
84.2
Before Interpretation
Anya Bernstein
Associate Professor, SUNY Buffalo School of Law. JD, Yale Law School; PhD (Anthropology), The University of Chicago

I have benefited from the incisive commentary of Todd Aagaard, Christine Bartholomew, Barton Beebe, Guyora Binder, Michael Boucai, Michael Coenen, Nicholas Day, David Engel, Richard Fallon, James Gardner, Jessica Greenberg, Jerry Mashaw, Hiroshi Motomura, Anthony O’Rourke, Nicholas Parrillo, Justin Richland, Cristina Rodríguez, Glen Staszewski, and Tico Taussig-Rubbo, as well as presentation participants at SUNY Buffalo School of Law, the Academia Sinica Institutum Iurisprudentiae, and the 2016 Law and Society Association conference.

Interpretation requires an object: a text, an act, a concept, a something to be interpreted. An interpreter must pick out that object.

Judicial Decision-Making Statutory Interpretation Textualism
Print
Article
84.2
The (Not So) Plain Meaning Rule
William Baude
Neubauer Family Assistant Professor of Law, The University of Chicago Law School

We appreciate helpful comments and criticisms from Larry Alexander, Samuel Bray, Eric Citron, Jonah Gelbach, Abbe Gluck, Richard McAdams, Sean Mirski, Eric Posner, Richard Re, Stephen Sachs, Adam Samaha, Frederick Schauer, Asher Steinberg, James Stern, David Strauss, Ilan Wurman, the participants in the Legislation Roundtable at the Benjamin N. Cardozo School of Law, and the editors of The University of Chicago Law Review. We also appreciate research support from the SNR Denton Fund and the Alumni Faculty Fund, and excellent research assistance from Kelly Holt.

Ryan D. Doerfler
Assistant Professor of Law, University of Pennsylvania Law School

Many tenets of statutory interpretation take a peculiar form. They allow consideration of outside information—legislative history, practical consequences, the statute’s title, etc.—but only if the statute’s text is unclear or ambiguous.

Judicial Decision-Making Statutory Interpretation Textualism
2
Essay
84.1
The Absence of Method in Statutory Interpretation
Frank H. Easterbrook
Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, The Law School, The University of Chicago

This Essay was prepared for the Symposium “Developing Best Practices for Legal Analysis” at The University of Chicago on May 6 and 7, 2016, and is © 2017 by Frank H. Easterbrook.

A conference about “best practices” for legal inquiry supposes that there are practices. In the field of legal interpretation, that assumption is doubtful.

Best Practices Judicial Decision-Making Statutory Interpretation Textualism
2
Article
83.4
Working Themselves Impure: A Life Cycle Theory of Legal Theories
Jeremy K. Kessler
Associate Professor of Law, Columbia Law School.
David E. Pozen
Professor of Law, Columbia Law School.

. For valuable comments on an earlier draft, we thank Will Baude, Seyla Benhabib, Jessica Bulman-Pozen, Josh Chafetz, Robert Ferguson, Joey Fishkin, David Fontana, Willy Forbath, Barry Friedman, Jeff Gordon, Bernard Harcourt, Olati Johnson, Laura Kalman, Jody Kraus, Daryl Levinson, Anna Lvovsky, Gillian Metzger, Henry Monaghan, Sarah Rajec, Steve Sachs, Fred Schauer, Pierre Schlag, Ian Shapiro, Ganesh Sitaraman, Larry Solum, James Stern, Peter Strauss, Cass Sunstein, Katie Tabb, Eric Talley, Calvin TerBeek, and Mark Tushnet, as well as workshop participants at Columbia Law School and William & Mary Law School. For helpful research assistance, we thank Kendall Collins and Mickey DiBattista.

I.  The Object of the Life Cycle Theory

Cost-Benefit Analysis Originalism Textualism

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