textualism
Liberal Judges Embrace Textualism
Why are these judges suddenly so enthusiastic about Justice Scalia’s approach to reading statutes?
Two of Trump’s major regulatory efforts were recently thrown out by the D.C. Circuit. The liberal judges who wrote the opinions latched onto a conservative theory called textualism, which was most prominently advocated by Justice Antonin Scalia. While judges in an earlier era tried to interpret Congress’s intent in writing a law, textualists focus solely …
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CONTINUE READINGFancy Dancing on the Appalachian Trail
How to Use Textualism to Evade Statutory Texts
The Supreme Court’s decision in Cowpasture case allows gas pipelines to cross the Appalachian trial. The ruling didn’t get much attention because of its timing. It came down the same day as Bostock, which outlawed employment discrimination against gays and transsexuals. Bostock featured a big battle over the meaning of textualism. But Cowpasture was also …
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CONTINUE READINGIf the Constitution is Dead, where does that leave Takings?
Justice Scalia is getting a lot of attention for his comment that the Constitution is “dead, dead, dead”, but obviously he didn’t mean that the Constitution is no longer in effect. (See? Intent theory sometimes is helpful, Nino.). Rather, he meant that the Constitution does not have a meaning that changes over time. It has …
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CONTINUE READINGPosner versus Scalia Smackdown!
Environmental law revolves around statutes, so the topic of statutory interpretation is crucial for lawyers in the field. For the past thirty years, Justice Scalia has promoted an approach called textualism, which purports to provide an objective method of interpreting laws. This approach often, though not always, leads to narrower reader of statutes than broader …
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CONTINUE READINGDoes Any Pollutant Mean ANY Pollutant?
It got less attention than it should because it was upstaged by the Supreme Court’s healthcare decision, but last week’s D.C. Circuit ruling on climate change was almost as important in its own way. By upholding EPA’s regulations, the court validated the federal government’s main effort to control greenhouse gases. To the extent that the …
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CONTINUE READINGIf Textualism Isn’t Dead, It’s Badly Wounded
This one is too good not to blog. Strictly speaking, it’s an immigration case, but it has interesting implications for all statutes and especially environmental ones. Jawid Habibi is a lawful resident alien, but not someone you’d want to hang around with. He was convicted of domestic misdemeanor battery in California, and then received a 365-day …
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