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> The court has become “more and more obsessed with language and grammar in recent years,” says Stanford Law professor Jeff Fisher. “Oral argument these days ca
by gxnxcxcx 3y ago
> The court has become “more and more obsessed with language and grammar in recent years,” says Stanford Law professor Jeff Fisher. “Oral argument these days can seem like being in a sixth grade English class.”
> “The Court has had cases, for example, that turned on the word ‘so’” and “the use of a definite article instead of indefinite (‘the’ instead of ‘a’),” he says. “This is all a product of the ascendancy of ‘textualism’—the theory of statutory construction that aims to discern precisely what the words Congress enacted mean, as opposed to what Congress probably intended to say.”
Great news, if true, for nerds in comment sections everywhere trying to get away with treating the law as code by nitpicking the letter of the law.
- froh 3y agoas if the literalist Bible interpretation mind set creeped it's way into interpretation of legislation and thus day to day coexistence? instead of listening to the intent in good faith (pun intended) we stick with how _we_ interpret some word and what we believe the _text_ means?
- whatshisface 3y agoI think this will have the effect of increasing the latitude for judicial activism as unlikely interpretations of law as it is written become accepted on the basis of (ever-flexible) grammatical arguments.
- V__ 3y agoCan someone explain to me the thinking behind textualism? Isn't it obvious that language is imprecise and context matters? I just don't get it. I also don't understand why laws don't come with comments to better define the intended context.
- sidewndr46 3y agoIf the objective is to re-interpret long established laws to be mean something else, focusing on the grammatical details is as good of a justification as anything.
- ecshafer 3y agoThe law is a written thing. What is written down is the law, is an important concept for a nation of laws. If you are to be governed by laws it’s important that said laws are enforced and it’s not arbitrary, so therefore we aught to follow what the law says and not what we think the intention of the law maker was. If there is ambiguity then the law maker can and should change the law. If there is a law that fines you for wearing a blue shirt and you get fined for wearing a red shirt, but the court says “we know the intention was red shirt” then that is arbitrary enforcement of the law, we are just at the whims of the officials in the government and not being run by the laws.
- Doxin 3y agoOf course in practice you want to be somewhere in-between extremes. You probably don't want to allow daft arguments about specific wording when it's pretty clear there's a correct interpretation. On the other hand you don't want guilty/not-guilty to become entirely detached from the text of law. It's tricky stuff with a lot of grey area which is why judges are important people.
- oatmeal1 3y agoContext and intent matters, but context and intent are very subjective. Justices are apt to read the context and intent that they want to interpret legislation in a way they personally think would be beneficial. If you want an example of this, see Scalia's dissent in King v. Burwell. It's very entertaining. A textualist approach can also unfortunately lead to biased decisions, but only to the extent Congress is imprecise with language. A textualist approach has the benefit of discouraging Congress from crafting bad legislation that requires judicial interpretation in the first place.
- nitwit005 3y ago> I also don't understand why laws don't come with comments to better define the intended context. Laws do often come with details about why the law was passed, and there is often the public debate on the law before hand. Members of congress have spoken against legal rulings on the basis that it went against their intent.