Thursday, May 19, 2022

Nielsen v. Preap, the Futility of Strict Textualism, and the Case for Universalism in Judging by Joseph Kimble

Immprofs -- you may have received a recent copy of The Scribes Journal of Legal Writing in your faculty inbox. And you may have just popped it to the side as likely not relevant to your own research. But, oho! A look at the table of contents revealed this beauty from Prof. Joseph Kimble (Cooley, emeritus): Nielsen v. Preap, the Futility of Strict Textualism, and the Case for Universalism in Judging. Unfortunately, this bad boy isn't on SSRN or Westlaw yet. So you'll have to track down a paper copy or wait for them to upload to the web.

In any event, Kimble's article offers an interesting and very different way to look at a SCOTUS immigration case. (BTW, don't remember the 2019 case of Preap? Check out this prior post about oral argument and this post with the syllabus.) Kimble breaks down textual and nontextual arguments of the majority and minority opinions in a clear way. He uses bullet points! He has the majority, minority, and his own analysis clearly identified and broken down by different areas of analysis. Not to mention the fact that he's also got biting insight about the text of the statute itself, e.g.:

"Neither opinion says so, but it's seriously bad drafting to place the when... released clause so far from what it supposedly modifies. Why not The [Secretary] shall take an alien into custody upon release from detention if the alien --- (A) is inadmissible... Easy."

Here is part of Kimble's conclusion:

Neilson is yet another case in which minutely examining the text proved futile. Surely, the textual debate was a draw. Or if one side had the better of it, the margin was slim. Yet the majority declared that there was no ambiguity: the text "cuts clearly" against the detained aliens. The instead of acknowledging the uncertainty, arguing that one reading seemed the more likely one, and then candidly looking to nontextual reasons for a decision. But no -- the text was clear. ...

Highly recommend!


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