Loading...
The New Textualism
Eskridge, William N., Jr.
Eskridge, William N., Jr.
Files
Loading...
The_New_Textualism.pdf
Adobe PDF, 1.13 MB
Abstract
An analytical conundrum besets a court's interpretation of a statute: The statute's text is the most important consideration in statutory interpretation, and a clear text ought to be given effect. Yet the meaning of a text critically depends upon its surrounding context. Sometimes that context will suggest a meaning at war with the apparent a contextual meaning suggested by the statute's language. How should the judge proceed? Is contextual evidence even admissible in such cases? How can it be excluded? The Supreme Court's traditional resolution of this conundrum has been to consider virtually any contextual evidence, especially the statute's legislative history, even when the statutory text has an apparent "plain meaning." This traditional approach has been challenged by a few commentators and, now, from within the Court itself. Consider the case of Immigration & Naturalization Service v. Cardoza-Fonseca.