©2013. Published in Landslide, Vol. 6, No. 2, November/December 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
One of my first impressions while reading Justice Antonin Scalia and Professor Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts was that I am far more of a textualist than I had previously appreciated. As Scalia and Garner use the term, textualism is an approach to interpreting legal documents that looks for meaning in the governing text itself. Given this definition, I suspect most lawyers, judges, and academics are textualists when interpreting statutes, ordinances, regulations, contracts, patents, and other types of legal texts. Yet, as I continued through Reading Law, it quickly became apparent (despite the authors’ best efforts) that textualism alone rarely provides all the answers. There is a strong tension between the basic—and largely indisputable—need to root the interpretation of legal texts in the words of the texts themselves and a host of problems and inherent contradictions that arise when that approach is employed.
My primary goal in reading Scalia and Garner’s treatise was to explore what Reading Law might have to say for patent law. Of course, followers of the now-famous Posner-Scalia debates sparked by Reading Law know that this is not a book directed to patent law. Yet the observations Scalia and Garner make apply to law generally, and while the authors barely mention patent law, it is an area of the law that is no stranger to textualism—particularly when interpreting patent claims.
Reading Law is both a description of textualism and an argument in favor of a strong textualist approach (and, to a lesser extent, originalist approach: looking to the meaning words had at the time the legal text was drafted). As the authors note, virtually all interpreters of legal texts at least begin with the text. But the authors believe that the correct approach maintains a disciplined focus on the text (although they distance themselves from the excesses of so-called “strict textualism”). As the authors explain, “We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”1 Textualism is thus distinguished from approaches that consider the purpose of the text (“purposivism”) and those that consider the workability of the text and take the view that statutes should be construed to produce sensible, desirable results (“pragmatism”).
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