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Monday, December 12, 2005

Another Reason to Love the Federalist Society

I realize that my recent lauding of the Federalist Society is becoming absurd, but since I needed a break from studying for finals anyway, I thought I'd note what I think is a perfect example of the benefits of Federalist Society ideological diversity.

MCI v. AT&T is an interesting case in Administrative Law because of the way it seems to warp Chevron. Justice Scalia's majority opinion takes a word in the statute, "modify," and instead of determining at Step One that the term is sufficiently ambiguous such that the Court should adopt the agency's interpretation, he gets into a dictionary fight with Justice Stevens in dissent over the use of the term, and never gets to Step Two. It's interesting because if this is a term that has different definitions in different dictionaries, and warrants the debate that ensued between the majority and the dissent, it seems like it IS ambiguous, such that it should be resolved by the agency at Step Two.

In the casebook notes following the case there is, as usual, academic commentary on the issue of the case. There, we see conflicting commentary from three of my favorite (and all Federalist) academics--John Manning (Harvard), Tom Merrill (Columbia), and Orin Kerr (GW)--debating this textualist approach to Step One. John Manning defends the textualism. Tom Merrill questions its use in this instance, arguing that strong textualism at Step One would lead to the permanent subordination of Chevron. Orin Kerr uses an empirical study to show that textualism at Step One is not used the same way it is in regular statutory interpretation--since the dispute is judiciary/executive rather than judiciary/congress, courts are more likely to find ambiguity in regulatory statutes. They all, in various ways and levels of conviction, engage with a legal idea that continues to receive short shrift by the Left.

I am probably not a Textualist, and question the prudence of too much resolution through dictionaries at Step One, but the added time textualism has gotten through its injection into the debate has been of immense value in my understanding of the law. I am extremly grateful that I had Jeremy Waldron (who, though not a Federalist, in his own words "worships" Justice Scalia and his textualism) to teach me the virtues of textualism, and that the cursory treatment and conclusory repudiation I was exposed to in other classes was not the end. One need not buy these ideas wholesale to appreciate the value of their presence in the debate. The result of giving them time will likely be a moderate concensus that incorporates the values of the more extreme version, but tones it down for practical implementation.

For a related, and fantastic, article on the subject, see Jonathan T. Molot, The Rise and Fall of Textualism, 105 Colum. L. Rev., (forthcoming).


Blogger Orin said...


Glad to hear that my 3L paper is still getting some attention. Are you using the Strass Rakoff book?

Orin Kerr

3:32 PM  
Blogger Helvidius said...

Wow, I had no idea that was your 3L paper. Strauss Rakoff is the one.

8:44 PM  

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