Textualism

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!)

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.

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.

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.

. 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.