Kevin Tobia (Georgetown University Law Center; Georgetown University – Department of Philosophy), Daniel Walters (Texas A&M University School of Law) & Brian G. Slocum (Florida State University, College of Law) have posted Major Questions, Common Sense? (62 pages) on SSRN. Here is the abstract:
The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual clarity in “high stakes” situations. Both linguistic arguments rely heavily on “common sense” examples from philosophy and everyday situations.
This Article tests whether these examples really are common sense to ordinary Americans. We present the first empirical studies of the central examples offered by advocates of the MQD, and the results undermine the argument that the MQD is a linguistic canon. Even worse for proponents of the MQD, we show that the interpretive arguments used to legitimize the MQD as a linguistic canon threaten both textualism and the Supreme Court’s growing anti-administrative project.
Via Larry Solum at Legal Theory Blog, who says:
Even if you are not particularly interested in the major questions doctrine, I think it will be worth your while to read this paper. There is a lot going on here–at the cutting edge of legal theory.
Highly recommended. Important. Download it while it's hot!
My view is that the MQD is neither a textualist canon nor a linguistic canon. That doesn't (necessarily) make it illegitimate.
Posted at 6:03 AM