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The Myths of Textualism and Their Relevance To the ALI’s Restatement of the Law, Copyright

Newman, Jon O.

In 2015, Justice Elena Kagan famously proclaimed, “We’re all textualists now.”  To which I ask, “When were we not?”

Justice Kagan not only used the word “now,” but also provided her evidence that being a textualist is of recent vintage.  She asserted that when she was at the Harvard Law School in 1983, the inquiry concerning a statute was “what should this statute be,” rather than what do “the words on the paper say.”  And she attributed this inquiry to a “policy-oriented” approach with judges “pretending to be congressmen.”

With respect, I cannot credit this evidence. I started my law school years thirty years earlier at Yale Law School, which reveled in its reputation for being concerned with “policy,” yet I never once heard a professor suggest that the text of a statute should be ignored in favor of a “policy” interpretation.  “Policy” was thought relevant when a statutory provision was unclear, or, in nonstatutory cases, when existing case law provided no clear answer.  Of course, even in a statutory case, the policy to be implemented was the policy preferred by Congress, not by judges.

I take on the task of refuting Justice Kagan because I believe the “now” in her statement is only one of many myths about textualism, myths often perpetuated by some judges, legal scholars, and politicians, especially when they disagree with a court’s decision.  Refuting these myths is particularly relevant to the current controversy within the American Law Institute concerning the effort to craft a Restatement of the Law, Copyright.

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Also Published In

Title
The Columbia Journal of Law & the Arts
DOI
https://doi.org/10.52214/jla.v44i3.8101

More About This Work

Published Here
August 29, 2022