Faculty Bibliography

How do legal texts determine legal content? A standard answer to this question—sometimes called “the standard picture”—is that legal texts communicate something and what they communicate is identical to legal content. Mark Greenberg criticizes the standard picture and offers in its place his own “moral impact theory.” My goal here is to respond to Greenberg by showing how the standard picture better explains legal practice than the moral impact theory does. To that end, I first clarify certain aspects of the moral impact theory. I then critique the theory, focusing on its inability to explain (i) why practitioners reason about legal content as they do and (ii) why they agree on legal content as often as they do. Finally, I refine the standard picture and demonstrate how it explains what the moral impact theory cannot.

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity, thereby delivering an important victory for LGBTQ+ persons in their continuing struggle to be treated with equal regard in all areas of life. A striking feature of the case, and one reason why it has been so widely discussed, is that all three opinions—the majority and two dissents—professed to apply a textualist theory of statutory interpretation. In particular, all three opinions took for granted that courts should enforce a statute’s ordinary meaning at the time of enactment.3 No competing theory of statutory interpretation was even on the table. Going forward, we can expect textualism to play an increasingly prominent role in how courts resolve questions of statutory interpretation. So, it is worth asking what textualism instructs courts to do and whether courts should do as textualism instructs. A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries attempts to answer both of those questions. It contends that there were multiple versions of textualism on display in the Justices’ opinions in Bostock and that none of those versions is ultimately defensible. This is a long and rich Article by distinguished scholars, and I agree with much of what they say. Yet I also think that their characterization of and objections to textualism miss the mark. In this Essay, I argue (i) that the versions of textualism that Eskridge, Slocum, and Gries criticize are not really textualism; (ii) that their examples of “societal dynamism” do not put any pressure on textualism properly understood; and (iii) that their corpus-linguistics analysis of the word “sex” would not persuade any textualist to adopt their preferred interpretation of Title VII. I am not a dyed-in-the-wool textualist myself: while frequently sympathetic to textualism, I doubt that judges ought to employ it in every case. Still, my sense is that many commentators are unduly dismissive of textualism—tending to criticize strawman versions of it rather than the genuine article—and my goal is to push back against that tendency here. Below, Part I attempts to lay out more clearly what textualism claims. Parts II and III argue that the “compositional” and “extensional” versions of textualism that Eskridge, Slocum, and Gries criticize are not textualism and, indeed, not positions that any mainstream legal interpreter today claims to hold. Part IV answers the authors’ objections to textualism based on so-called societal dynamism. Finally, Part V turns to the authors’ corpus-linguistics analysis of “sex.”

In two recent decisions—Bostock v. Clayton County and Niz-Chavez v. Garland—a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.