Mark Greenberg, ‘Beyond Textualism’

ABSTRACT
This paper was the basis for my Fordham University Natural Law Colloquium lecture in September 2019. More than 20 years ago, Justice Scalia wrote of ‘the great degree of confusion that prevails’ in the field of statutory interpretation. Today, Scalia’s textualism is ascendant. Over the past three decades, textualism has expanded its influence both in both the courts and in the scholarly literature. (I’m using the term textualism to encompass textualism in both statutory interpretation and constitutional interpretation. The latter is also called public meaning originalism.) In the first part of my talk, I’ll show that despite the confidence with which it is propounded, textualism is deeply confused. In the second part of my talk, I suggest a new way of thinking about legal interpretation from the ground up …

Greenberg, Mark, Beyond Textualism (October 16, 2019). UCLA School of Law, Public Law Research Paper No 19-41.

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