Textualism Ambiguity And Absurdity Outline

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TEXTUALISM i. Textualists see the legislative process as "rough and tumble" and based on political compromise.

1. Textualists assume that an apparent mismatch between text and purpose does not necessarily reflect a failure of expression, but rather is the predictable byproduct of legislative compromise and of the legislative choice, at times, to rely on rules rather than standards.

2. Thus respect for legislative supremacy requires judicial respect for often arbitrary legislative compromises rather than an attempt to derive (and impose) a coherent statutory purpose. ii. Fear of judicial discretion is another justification for textualism.

1. This leads textualist judges to enforce semantic details, even when they do not seem like they are the result of an intentional bargain. iii. West Virginia University Hospitals v. Casey

1. Facts: Hospital sued because of new Medicaid payment schedule. Eventually won suit and was awarded fees for experts retained to aid in suit preparation, pursuant to 42 U.S.C. SS 1988.

2. Applicable Statutory Language: "...the court, in its discretion, may allow the prevailing party...a reasonable attorney's fee as part of the costs."

3. Issue: Whether "a reasonable attorney's fee" encompasses "expert fees."

4. Holding: The statute conveys no authority to award expert fees because "attorney's fees" unambiguously excludes "expert fees."

5. PLAIN MEANING a. Scalia shoved aside the purposivist argument and dismissed the statute's preamble, committee reports and hearings, because the language was clear. i. Scalia refuses to ignore the "means" approved by Congress in determining the statute's "ends."

1. Statutes have length as well as discretion and purposivist arguments that contradict the text ignore this length, which is the result of legislative compromise. ii. He states that the best evidence of purpose is the language of the statute---if a phrase, when construed semantically and according to normal usage is unambiguous, we do not look at other evidence and may eliminate non-textual

information and considerations about policy. B. Scalia only cares about evidence of usage---
statutory usage, dictionaries, canons, evidence of how ordinary people use the language, etc. I. STATUTORY USAGE

1. He cites other statutes that distinguish between the two and list them separately. A. Toxic Substances Control Act B. Consumer Product Safety Act

2. He cites statutes that only list "attorney's fees" and points to how other courts have construed them to exclude expert fees. A. The Clayton Act lists "attorney's fees" and 4 appellate opinions construed it to exclude expert fees.

3. Evidence of usage, not evidence of policy, indicates what phrases means. II. CANON

1. Surplussage---if other statutes generally separate the two types of fees, to hold them to be the same would result in surplussage.

2. In Pari Materia-6. PURPOSE A. In dissent, Stevens wrote, "In the domain of statutory interpretation, Congress is the master and the Court does this country a disservice when it needlessly ignores persuasive evidence of Congress' actual purpose and requires it to take the time to revisit the matter and to restate its purpose in more precise English whenever its work product suffers from an omission or inadvertent error." B. It seems that at the time the statute was enacted, everyone knew it was in response to Alyeska Pipeline, which held that courts lack equitable discretion in awarding costs to a litigant unless specified in a statute) and that its purpose was to allow people to sue on a more equitable basis. I. Scalia said that the statute did not reinstate the pre-Alyeska regime because

it only gave fees to prevailing parties and only for certain civil rights actions. II. Scalia doesn't dispute that Congress wanted to reinstate some version of equitable discretion with this law, but he said that by using "attorney's fees," Congress indicated that it didn't want to disturb that portion of Aleyska that dealt with any other aspect of equitable discretion.

1. "The purpose of a statute includes not only what it sets out to change but also what it resolves to leave alone." C. Scalia doesn't care about this purpose because the text was clear. I. Details of usage trump generalities of purpose

7. LEGISLATIVE HISTORY A. In dissent, Stevens said we should look at the statute's legislative history to resolve the question. I. Senate report explained that the purpose of the Act was that to reinstate the preAlyeska regime by giving citizens the "opportunity to recover what it costs them to vindicate these rights in court." b. Scalia says that where the text is unambiguous and has a clearly accepting meaning in both legislative and judicial practice, it cannot be expanded or contracted by the statements of individual legislators or committees.

8. AMBIGUITY a. For a textualist, only when there is ambiguity is it okay to look outside the text. b. Scalia says (in dicta) that if the statute were ambiguous, it should be construed in a way that makes it fit most logically with the juris corpus. i. Still doesn't condone looking to legislative intent/purpose. AMBIGUITY (A LIMIT ON TEXTUALISM) iv. Ambiguous text permits consideration of more general purpose.

1. This purpose serves as a tie breaker.

2. Ambiguity is a train switch that allows for more tools of construction. v. "The words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing, nevertheless, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out

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