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January 24, 2008

Thinking about Ali

I was wondering why this case doesn't represent a move back toward "formalistic" textualism?  In other words, the majority, arguably, discounts context and focuses in on literalism?  A step backward for "new" textualism? 

I can see a statute, and I'm sure they're out there, where the entire statute is about, let's say, customs officials, and somewhere in the statute it says "any police officer."  Seems to me that this case suggests that the fact that the entire statute is about the narrow is irrelevant?  Too myopic a view?

Interesting stuff. No doubt this one will have an impact.

January 24, 2008 | Permalink


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The majority opinion in Ali is, I agree, pretty far out toward the "utterly acontextual literalism" end of the spectrum. (Both Justice Kennedy's and Justice Breyer's dissents are, of course, at the "richly contextual purposivism" end.) On thing I wonder about, though, is how much the justices feel bound by any one opinion as a statement of method. Justices Scalia and Breyer have made considered public statements about interpretive method, in academic treatments separate from their opinions. Justice Stevens has been more overt about methodological stakes over the years, it seems to me. And Justice Kennedy's dissent in Ali itself raises the "we're shifting method" point as well. Do lower court judges really think the Court has reached a method settled enough and robust enough to answer really tough interpretive questions in a predictable way? As I teach my own Jurisprudence of Interpretation class, I struggle with how little the Court appears to feel itself bound, over time, to the methodological framework one might derive from any one case or small group of cases. (And, David, welcome back!)

Posted by: Joe Miller | Jan 24, 2008 9:11:48 AM

Good point, and you're right of course that one case does not a doctrine shift make. But I can see litigators latching onto a lot of this court's statements and running with them to limit the use of canons in favor of "clear" textual meaning. And, as I sat and read it, it really struck me that it was the sort of literalistic approach that one would expect "New Textualists" to reject.

Further, it was interesting to see "rules" being (litigators will later argue) established by the majority as to when a canon is, or is not, proper. In that sense, perhaps the briefs were to blame? I haven't read them yet, but if they really hinged everything on noscitur or ejusdem, then they not only had weak arguments, but they missed the New Textualism home run of "you can't read it in isolation, and in context..."

It is good to be back. I have had a rough year or so and deserve some fun!

Posted by: David Hricik | Jan 24, 2008 4:05:45 PM

i finally got around to reading the case. tough issue. i see your point about how the majority opinion seems to be more along the lines of strict literalism, rather than contextual literalism.

what surprises me most about the opinion, though, is how confident each side is that they're right (and how willing they are to demean the other side's arguments).

great case, though, which shows how important statutory interpretation has become. 25 years ago, no way you'd see an opinion like this from the Court.

Posted by: andy | Feb 9, 2008 6:23:37 PM

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