Textualism and the Duck-Rabbit Illusion

16 Pages Posted: 13 Oct 2020 Last revised: 3 Dec 2020

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: October 1, 2020

Abstract

Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.

Suggested Citation

Sunstein, Cass R., Textualism and the Duck-Rabbit Illusion (October 1, 2020). Harvard Public Law Working Paper No. 20-26, Available at SSRN: https://ssrn.com/abstract=3703039 or http://dx.doi.org/10.2139/ssrn.3703039

Cass R. Sunstein (Contact Author)

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Harvard University - Harvard Kennedy School (HKS) ( email )

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