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No Frills Textualism, 119 Harv. L. Rev. 2041 (2006)

Abstract

The purpose of this Review is to situate Professor Vermeule's "no frills" textualism historically and to evaluate its cogency. Part I identifies previous statutory theorists who have anticipated the institutionalist methodology and the central argument in Judging Under Uncertainty - that agencies and not judges should enjoy primacy in statutory interpretation. Professor Vermeule is much more dismissive of judicial capabilities and more enthusiastic about agency lawmaking than earlier theorists, however. Rejecting the relevance of constitutional norms and traditional practice, he argues that the country will save money and enjoy better policy decisions if federal judges ratify agency rules unless they are flatly inconsistent with statutory text read through the lens of agency-approved principles of interpretation.

Professor Vermeule presents his case for a no frills textualism in an engaging, sometimes brilliant, but ultimately unpersuasive way. His argument fails to consider important constitutional norms (Part II of this Review) and the full range of institutional consequences of such a significant change in judicial practice (Part III). There is also reason to doubt whether his proposed methodology would actually induce judges to be more deferential to good agency decisions; the results are essentially unpredictable (section IV.C). If it actually had an effect on judicial decisions, no frills textualism would be just as likely to generate significant costs by tolerating bad agency decisions (section IV.A), encouraging policy instability (section IV.B), and unmooring statutory policy from legislative purposes (Part V). It also would alter the shape of judicial reasoning, making its presentation more mechanical and less normative than it is now (Part VI). This last feature, however, might yield advantages for no frills textualism from some perspectives.

Date of Authorship for this Version

2006

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