Felipe Jiménez (USC Gould School of Law) has posted Minimalist Textualism (Seton Hall Law Review, forthcoming) (72 pages) on SSRN. Here is the abstract:
Textualism is now the dominant theory of statutory interpretation in the Supreme Court. This paper explores a series of conditions that all theories of statutory interpretation, including textualism, ought to satisfy. The conditions are Nonequivalence; Limited Domain; Legality; Specificity; Normativity; and Restricted Relevance. These conditions deny claims sometimes made by textualists—such as “the text is the law” or “the ordinary meaning of the statute governs.” They also qualify some of the normative arguments textualists use to justify their views. Textualist theories should satisfy these conditions because they are warranted requirements for statutory interpretation. Compliance with these conditions leaves space for a textualist approach that preserves commitment to statutory text and the rejection of appeals to purpose and legislative intent, while avoiding some common pitfalls in textualist theory, rhetoric, and practice. This minimalist textualism is thus a better version of textualism.
Posted at 7:30 AM