Textualism – Cornell Law Review

Tag: Textualism

Article

A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism

Neil H. Buchanan, Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation, Fredric G. Levin College of Law, The University of Florida

Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

This Article argues that we have witnessed substantially less direct conflict between L&E and O&T than one would expect because, despite their different foundations, the two approaches closely resemble each other in a way that permits conservative jurists to make all-things-considered and ideologically laden value choices and then use L&E, O&T, or both to offer post hoc rationalizations for those choices.

Mar 2021

Article

The Paradoxical Impact of Scalia’s Campaign Against Legislative History

Stuart Minor Benjamin, Douglas B. Maggs Professor of Law, Duke Law School

Kristen M. Renberg, Ph.D. Candidate, Department of Political Science, Duke University & J.D. student, Duke Law School

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…

May 2020

Introduction: Reviving the Thirteenth Amendment

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. What has been the legal significance…

Sep 2019

Volume 106

Unequal Representation: Women in Clinical Research
Allison M. Whelan

Associate, Covington & Burling LLP, Washington D.C.; J.D., University of Minnesota Law School; M.A. Bioethics, University of Minnesota. Special thanks to Professor Michele Goodwin and the editors of the Cornell Law Review. The views expressed in this article are the author’s and do not represent those of any past, current, or future employer.
Apr 2021
Copyright Silencing

Cathay Y. N. Smith, Associate Professor of Law, University of Montana Blewett School of Law. Thanks to Aman Gebru, Jennifer Sturiale, Jacob Victor, Xiyin Tang, for comments and Nicholson Price and Alex Roberts for organizing the 2020 virtual JIPSA summer workshop. Thanks also to Orly Lobel and her students at University of San Diego School of Law for inviting me to talk about this Essay and Tiger King. Finally, thank you to the diligent law review editors at Cornell Law Review.

Jan 2021
The Electors Clause and the Governor’s Veto
Nathaniel F. Rubin. J.D., Stanford Law School, 2018. My thanks go to Lisa Larrimore Ouellette, Allison Douglis, Fares Akremi, and Adam Hersh—without whose feedback and guidance this Essay would not have been possible. My thanks too to the editors of the Cornell Law Review for their excellent work under trying conditions—including Victor Flores, Nicholas Pulakos, Lachanda Reid, Gabriela Markolovic, and Jared Quigley. All errors are my own.
Jan 2021
Book Review—Yearning to Breathe Free: Migration Related Confinement in America
Danielle C. Jefferis. Assistant Professor, California Western School of Law. I owe deep gratitude to Professor César Cuauhtémoc García Hernández. His research and scholarship are significant contributions to this field and have pushed me to think critically about my own work. He and I, along with Carrie Rosenbaum and Jennifer Chacón, were in conversation about this book during an Author Meets Reader session at the Law and Society’s 2020 Annual Meeting, and our dialogue refined this piece. I also thank the editors of Cornell Law Review, including Gabriela Markolovic, Nicholas Pulakos, and Victor Flores, who have diligently and skillfully prepared this piece for publication during especially unsettled times. Any and all errors are mine.
Oct 2020
Ford’s Hidden Fairness Defect

Linda Sandstrom Simard, Professor of Law, Suffolk University Law School.

Cassandra Burke Robertson, John Deaver Drinko—BakerHostetler Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University School of Law.

Charles W. “Rocky” Rhodes, Professor of Law, South Texas College of Law Houston.

Oct 2020
New York Bail Reform: A Quick Guide to Common Questions and Concerns
Emmanuel Hiram Arnaud, law clerk at the United States Court of Appeals for the First Circuit and former appellate public defender in New York City.

Beulah Sims-Agbabiaka, law clerk at the Eastern District of Pennsylvania and former appellate public defender in New York City.
Oct 2020