Volume 158, Issue 1 
December 2009
Articles

Extreme Value or Trolls on Top? The Characteristics of the Most Litigated Patents

John R. Allison, Mark A. Lemley & Joshua Walker

The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals

Eugene Kontorovich

The Inexorable Radicalization of Textualism

Jonathan R. Siegel

Some scholars have recently suggested that textualism, intentionalism, and purposivism are more similar than is generally realized.  These new “accommodationist” scholars claim either that the rival methods share the same goals or even that the methods themselves have become indistinguishable. In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that in fact, not only does textualism differ fundamentally from intentionalism and purposivism, but the gap between them gets wider with time. Textualism’s prime directive—the formalist axiom that statutory text is the law—fundamentally distinguishes textualism from other interpretive methods. Moreover, Siegel argues, the formalist axiom has an expansionist logic that causes the gap between textualism and other methods to grow wider as the logical implications of the axiom are worked out. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. Intentionalism and purposivism, by contrast, are less dogmatic and better able to absorb the best lessons of rival methods without being untrue to their core principles. Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.


Comments

Vows to Collide: The Burgeoning Conflict Between Religious Institutions and Same-Sex Marriage Antidiscrimination Laws

Fredric J. Bold, Jr.

Six Unconstitutional Homicide Statutes: Rational Basis Review and the Problem of Harsher Punishment for Less Culpable Offenders

Justin V. Rodriguez

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