David Ismay (Northeastern University – School of Law) and Michael A. Brown (U.S. Attorney's Office) have posted The Not so New Textualism: A Critique of John Manning's Second Generation Textualism (Journal of Law and Politics, Vol. 31, No. 2, 2015) on SSRN. Here is the abstract:
This article presents the first comprehensive critique of the work of leading academic textualist John F. Manning, identifying serious flaws in the two major premises of his theory of statutory interpretation. First, Manning's reliance on Joseph Raz's “Intention in Interpretation” is misplaced, leaving textualism's search for “semantic” meaning without a sound theoretical foundation. Second, Manning's claim that the procedural requirements of Article I, Section 7, presumptively favor minority stakeholders is unsupported both by political theory and by recent empirical studies. The article concludes that Manning's version of textualism lacks meaningful support from interpretive theory or the Constitution.
Posted at 6:36 AM