It is gratifying, reading through a paper and noting here and there points that you might like to make, to find that by the end the author has anticipated them and made them well. This paper sneaks up on you. If at the outset it seems to be accepting that Justice Scalia has a jurisprudence of statutory interpretation that coheres and restrains, by the end it has shown the self-contradictions and decidedly political and institutional stakes in the textualist position the Justice appears to have been carving out for himself.
I am not going to address Professor Zeppos's account of Justice Scalia's approach to statutory construction and its problems as such. The Justice's general preference for textualism is a striking characteristic of his opinion-writing, and I find Professor Zeppos's analysis of the faults of textualism convincing. At the end, when he moves out from the Justice's relationship to statutes to the larger field of President, Congress, and agency, he points approvingly to a number of suggestions I've made; they are elaborated in two works now in draft that do not need to be repeated here.
Judges | Law | Legal History
Peter L. Strauss,
Legal Process and Judges in the Real World,
Cardozo L. Rev.
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