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Tag: Textualism

Article

A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism

Neil H. Buchanan, Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation, Fredric G. Levin College of Law, The University of Florida

Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

This Article argues that we have witnessed substantially less direct conflict between L&E and O&T than one would expect because, despite their different foundations, the two approaches closely resemble each other in a way that permits conservative jurists to make all-things-considered and ideologically laden value choices and then use L&E, O&T, or both to offer post hoc rationalizations for those choices.

Mar 2021

Article

The Paradoxical Impact of Scalia’s Campaign Against Legislative History

Stuart Minor Benjamin, Douglas B. Maggs Professor of Law, Duke Law School

Kristen M. Renberg, Ph.D. Candidate, Department of Political Science, Duke University & J.D. student, Duke Law School

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia‚Äôs position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…

May 2020

Introduction: Reviving the Thirteenth Amendment

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. What has been the legal significance…

Sep 2019