Nicole Steitz (Georgetown University Law Center), Brian G. Slocum (Florida State University, College of Law), & Kevin Tobia (Georgetown University Law Center; Georgetown University – Department of Philosophy) have posted The Broad Church of Modern Textualism (Brooklyn Journal of Law and Policy, Forthcoming) on SSRN. Here is the abstract:
Nearly thirty years ago Justice Scalia’s Tanner lectures identified Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking (2020) empirical study supported an alternative definition of the key statutory term (“labor or service”) that would avoid the conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, and empirically grounded interpretation. The exercise supports Holy Trinity’s textualist transfiguration—once the anti-textualist archetype, the decision is now a comfortable application of modern textualism. Whether this illustrates modern textualism’s sophistication or incoherence, it clearly signifies the theory’s reformation and break from the papacy of Scalia.
Highly recommended.