Law Commons^™

Interpretive Methodology And Delegations To Courts: Are ‘Common-Law Statutes’ Different?, Margaret H. Lemos

Faculty Scholarship

It is hard to find consensus on questions of statutory interpretation. Debates rage on about the appropriate goals of interpretation and the best means of achieving those ends. Yet there is widespread agreement, even among traditional combatants on the statutory interpretation field, when it comes to so-called “common-law statutes.” Textualists concede that text is not controlling; originalists admit that judicial construction of common-law statutes need not be keyed to the specific intent of the enacting Congress; and staunch defenders of strict statutory stare decisis allow frequent departures from precedent.

So what are common-law statutes? It is easy enough to name …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …