Nielsen v. Preap, the Futility of Strict Textualism, and the Case for Universalism in Judging

Abstract

This article breaks down the arguments in the named U.S. Supreme Court case, sets them side by side, and shows that deep textual analysis did not yield a clear outcome—although the majority said that it did. Only the minority opinion brought to bear a full range of legitimate considerations, including the values that are part of the American legal system. The article argues for universalism in judging and describes the case as a “shining example of the narrow-mindedness of textualism."

Keywords: textualism, universalism, judging, judicial interpretation, ambiguity

JEL Classification: K40