St. John's University Law Faculty Blog

On February 12, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, at a seminar at Georgetown Law School taught by Professors Lawrence Solum and Victoria Nourse.

Here is the abstract for Backdoor Purposivism:

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This Article breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

On Monday, February 4, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, at a faculty workshop at  Arizona State Law School.  On Tuesday, February 5, she presented Backdoor Purposivism at a seminar on Statutory Interpretation Theory taught by Bill Eskridge at Yale Law School.

Here is the abstract for Backdoor Purposivism:

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This paper breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The paper suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

On January 28, Professor Anna Roberts presented her paper, Arrests as Guilt, at a faculty colloquium at the Drexel University School of Law.  On Tuesday, February 5, Professor Roberts will present Arrests as Guilt at a seminar on “Criminal Law in Flux” taught by Professor Debby Denno at Fordham Law School.

Below is an abstract of Arrests as Guilt:

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrest in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences between arrest and guilt; if they run counter to an implicit fusion of the two, they will inevitably falter.

Professor Cheryl L. Wade was invited to deliver the keynote address at the Annual Review of Insolvency Law in Montreal. The conference is sponsored by the University of British Columbia Centre for Business Law and the Allard School of Law. The title of her talk is “Foreclosure and the Subprime Market in the U.S. – Lessons of the Past Ten Years.” The conference agenda can be found here.

Professor Wade’s keynote will focus on an article she is coauthoring with Dr. Janis Sarra, the UBC Presidential Distinguished Professor and Director of the Peter Wall Institute for Advanced Studies about the foreclosure crisis, predatory lending, and the drain of wealth from communities of color. The article is the culmination of two years of research and programs about the targeting of consumers of color and foreclosure in general. Professor Wade and Dr. Sarra traveled to Detroit, Baltimore, and New York to interview predatory lending victims. The stories of the interviewees were captured in a song written by a professional composer and songwriter who used the content of the interviews to create the song. Professor Wade also participated in performances that explored issues relating to foreclosure and global financial markets. Professor Wade was a part of the post-performance discussions led by the cast and creators about the global financial crisis of 2008 and the impact on investors, consumers, and communities in the decade that followed. Funding for travel for the interviews and the performances was provided by a generous grant from the University of British Columbia. You can access video of scenes from the performance along with the song entitled “Homes and Hearts” that will be used as part of a package of materials designed to inform the public about the impact of predatory lending on communities of color here.

In January, Professor Wade moderated a panel entitled Globalization, Sustainability, and Firm Cultures for The American Association of Law Schools Section on Economic Globalization and Governance at the 2019 AALS Annual Conference in New Orleans.

Last year, Professor Wade traveled to Oxford University to participate in a roundtable discussion entitled “Unintended Consequences”. The roundtable focused on the regulation of financial markets that was aimed at averting another global recession.