Jane S. Schacter (Stanford Law School) has posted Text or Consequences? (Brooklyn Law Review, Vol. 76, No. 3, 2011) on SSRN. Here is the abstract:
The magnetic pull of taxonomy is a well-worn feature of scholarship in the realm of statutory interpretation and beyond. Casting competing theories in bold relief and in terms of what separates them produces sharp and lively exchanges. And so it has been with textualism in statutory interpretation. Yet, there are gaps between the theory and practice of textualism, and focusing on the theory alone can obscure significant – though perhaps surprising – commonalities between textualism and the approaches it is typically set against. In this brief symposium essay, I suggest that, contrary to the claims commonly made by textualism’s adherents, the approach is often deployed in a strikingly pragmatic way. I mean something less global and more refined than a general claim that “textualism is as activist as anything else.” In particular, I mean that judicially-determined policy consequences can, and often do, figure quite prominently in textualist reasoning and method. Revealing and probing the consequentialist uses of textualism can give us a fuller and more accurate picture of the method, and open up an important set of prescriptive questions that are missed when we take textualism at face value and debate its wisdom only as an abstraction.
Posted at 7:00 AM