In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel's concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”
Volume 158 Issue 1 2010 Response