How do I construct an argument, consistent with textual primacy, that achieves my desired result?" This Article attempts to provide the practitioner with an answer to this question. First, the Article describes the historic movement from purpose to text in the interpretation of statutes. In doing so, the Article notes a critical feature of textualism as currently configured - that it permits some flexibility (more than many people realize) in the interpretation of statutes. The Article next discusses the impact of the textual movement on the process of arguing cases of statutory interpretation. In particular, the Article sets forth three possible options available to the practitioner when confronted with a statutory provision that does not, by its naked terms, support the result sought by the practitioner. The primary goal is to suggest ways in which a practitioner can successfully argue, within the textualist framework, for a result that is not, strictly speaking, dictated by the naked text. Stated differently (and more candidly), the Article seeks to assist the practitioner in using the rhetoric of textualism to achieve a result that is textualist in form, if not in substance. Finally, the Article roots this discussion in two real-world cases. It first analyzes a recent Supreme Court decision that provides a model for the way in which a party may use text-based arguments to achieve a result that might be viewed as contra-textual. The Article then puts that model to use in the context of another real-world example of statutory interpretation, yet unresolved.
Gregory, Robert J.
"Overcoming Text in an Age of Textualism: A Practitioner's Guide to Arguing Cases of Statutory Interpretation,"
Akron Law Review: Vol. 35
, Article 3.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol35/iss3/3