Textualism's Defining Moment

88 Pages Posted: 22 Dec 2022 Last revised: 13 Dec 2023

See all articles by William N. Eskridge

William N. Eskridge

Yale University - Law School

Brian G. Slocum

Florida State University, College of Law

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

Date Written: December 17, 2022

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.

Keywords: textualism, ordinary meaning, Supreme Court, statutory interpretation

Suggested Citation

Eskridge, William Nichol and Slocum, Brian G. and Tobia, Kevin, Textualism's Defining Moment (December 17, 2022). Columbia Law Review, Vol. 123, 1611-1698 (2023), Yale Law School, Public Law Research Paper , Available at SSRN: https://ssrn.com/abstract=4305017 or http://dx.doi.org/10.2139/ssrn.4305017

William Nichol Eskridge

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-9056 (Phone)

Brian G. Slocum

Florida State University, College of Law ( email )

425 West Jefferson Street
Tallahassee, FL 32301
United States
(850) 644-7294 (Phone)

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/kevin-tobia/

Georgetown University - Department of Philosophy

37th and O Streets, N.W.
Washington, DC 20007
United States

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