Just saw it was Kagan. You are right - what a wonderful collection of Justices in the plurality vs. dissent. That’s good stuff.
I don’t think it is reasonable to expect that every word in every statute can be interpreted literally.
My favorite part is Alito’s concurrence. He takes the plurality position, but makes sure to couch his concurrence in pure textualism.
Nor do I.
Hahaha. The 'ole reverse engineer trick. Love it when they do that.
I am primarily a textualist. But in a evaluating a statute, I consider the statute as a whole. I do not parse the statute literally word for word. But I evaluate the portions of the statute in the context of the whole statute, including any preamble, if a preamble was provided.
If, due to ambiguity, a textualist approach is not fruitful, than I will consider the intent of the legislature, as expressed in the debates and other records relevant to passage of the statute.
I have to ask.
How would you have ruled, in the fish case?
I would join the Ginsburg Opinion of the Court. In the context of the overall statute, tangible object has a very narrow application.
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Not the Alito concurrence?
Same conclusion, but Alito stuck to textualist canons.
I would support the Alito reading as well.
Both the Ginsburg and Alito approaches are textualist in nature. Semantically of course, they differ. But they ultimately reach the same conclusion.
I don’t disagree.
But Scalia was coming from a purely textualist position as well, when he signed on to the Dissent.
And here is where I have a relatively rare disagreement with Scalia. He took a literal word by word approach to the statute, an approach, as indicated in my earlier post, that I reject.
The statute should not be parsed word by word, but in the context of its whole.
Scalia’s approach did not fail because it was textualist, but because he parsed the statute in a semantically wrong word by word fashion, rather than in context of the whole.
I have to say - Scalia was almost a boogeyman to me, before I started law school.
Now that I’ve been doing this a little while, Scalia is my favorite. His dissents (or his concurrences, where he agrees with the majority, but aggressively rejects any legislative history analysis in the opinion) are the most fun opinions to read.
As for your all of your analysis, thanks.
All I wanted from this thread was interesting conversation.
It can’t. Some laws are just written very poorly.
Noscitur a sociis and ejusdem generis are textual canons. So is the whole act rule - although you might get some debate from Scalia’s ghost about that last one.
I appreciate all of your contributions to this thread.
Just my two cents, but as a juror the wording in the law is very important when deciding a verdict. Intent goes a long way towards whether I lean guilty or not guilty, or more specifically, proof of intent versus the wording of the law. Awhile back I was a juror on a disorderly conduct case with an aggravated assault charge. Went not guilty on aggravated assault because the defendant was merely defending himself from the off duty officer who he got in an altercation with, who also provoked the altercation, but guilty of disorderly conduct because when given the opportunity to avoid the altercation, the defendant chose to stay and trade blows with the officer. I think the disorderly conduct was the lesser of the charges at the time.
