Gluck & Posner on Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals

From the abstract for Abbe Gluck & Richard Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals (2018):

The vast majority of statutory interpretation cases are resolved by the federal courts of appeals, not by the Supreme Court, even though the Supreme Court’s practice has received nearly all of the attention from academics and practitioners. In part due to this myopia, the Court and many academics have been mired for decades in a by-now boring debate about “textualism” versus “purposivism.” That debate, while ostensibly about the judge’s relationship to Congress and its work, has centered in practice on little more than the most appropriate evidentiary tools of interpretation: text, statutory purpose, legislative history, interpretive presumptions, and so on. Many contend that these arguments have reached detente, with most Justices now unabashedly of the “textfirst” persuasion, opting for dictionaries, interpretive presumptions, and, only after those materials, a much stingier approach to legislative history. This shift is well captured by Justice Kagan’s penchant for proclaiming, like many academics, that “we’re all textualists now.”

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