John David Ohlendorf has posted Purposivism Outside Statutory Interpretation (Texas Review of Law & Politics, Vol. 21, No. 1, 2016, Forthcoming) on SSRN. Here is the abstract:
According to the conventional story of modern statutory interpretation, legal-process-style purposivism, dominant in statutory interpretation a half-century ago, has been largely vanquished by the textualist critique. A common refrain in the literature is that we are “all textualists now.” This Article argues that the death of purposivism has been greatly exaggerated. In a whole host of important but often overlooked doctrinal areas—from severability to statutory standing to choice of law—courts continue to take a strongly purposivist approach. By recognizing that purposivism has continued to flourish alongside textualism, we can see that statutory interpretation is fundamentally pluralistic, in the sense that most judges tackle the interpretive task with more than one methodological approach. To assess this interpretive pluralism, I draw on the discussion of a similar phenomenon in the constitutional context—the commitment of most judges to a plurality of interpretive “modalities.” Looking at the pluralism in statutory interpretation through this lens suggests that, while both contexts are importantly similar, they are also importantly different. The pluralism generally discussed in constitutional theory is “holistic”: each interpretive issue is addressed through an interpretive process that includes a blend of methodologies. But the pluralism in statutory interpretation is “disjoint”: textualism dominates those issues that fall “inside” statutory interpretation, while purposivism continues to thrive in those areas “outside.” This disjoint type of interpretive pluralism, I argue, is far more problematic than its more-familiar holistic cousin. Textualism might be the correct approach to statutory interpretation, or purposivism might, but there are serious theoretical difficulties with any attempt to split the baby. I conclude by suggesting that these insights can be carried back to the constitutional context, where they will likely create trouble for interpretive pluralism on its home turf, as well.
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