Tobia on Whether We're All Texualists Now @kevin_tobia @NYUasal

Kevin Tobia, Georgetown University Law Center; Department of Philosophy, is publishing We're Not All Textualists Now in the NYU Annual Survey of American Law (2023). Here is the abstract.

“We’re all textualists now,” announced Justice Kagan in 2015. In 2022, she rescinded the claim: “It seems I was wrong.” We’re not all textualists. This Article explores the meaning and impact of these two statements. It argues that the first statement was not mere hyperbole; it expressed that there is a significant sense in which modern American legal interpretive culture is textualist. The shared commitment is not a strict textualism, but a thin one; we all start with the text. The 2022 statement alleges that some “textualists” have begun to flout even the thin shared commitment to text. There is substantial uncertainty about whether our judicial interpretive culture will continue to be textualist.

Download the essay from SSRN at the link.