The Missing Step of Textualism

40 Pages Posted: 30 Jan 2006

See all articles by Abner S. Greene

Abner S. Greene

Fordham University School of Law

Abstract

Textualist - or "new" textualist - statutory interpreters trumpet the virtues of following the ordinary meaning of statutory text, and warn of the vices of introducing extratextual material - particularly, legislative history. But textualism misses a step in the argument. Its understanding of ordinary meaning is admittedly contextual, and context requires attention to purpose. Judges will know much about a statute's purpose-meaning from their background knowledge of the relevant area of law. Textualism can't explain why judges should be permitted to rely on such background knowledge but should be barred from gaining new knowledge about how certain words were used. This failure of explanation is the missing step. The argument for extratextual knowledge gathering, including legislative history, is thus strengthened, and the arguments for an ordinary meaning approach lead to an uneven judicial terrain - nuanced analysis of some statutory terms, but not of others, depending upon what judges already know, versus what they might learn.

Suggested Citation

Greene, Abner S., The Missing Step of Textualism. Fordham Law Review, Forthcoming; Fordham Law Legal Studies Research Paper No. 104. Available at SSRN: https://ssrn.com/abstract=878689

Abner S. Greene (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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