Archive for October 22nd, 2019

October 22, 2019

Salomone Publishes Commentary on South African Constitutional Court’s Historic Ruling on Language

Professor Rosemary Salomone published a commentary on the South African Constitutional Court’s recent ruling in the case against Stellenbosch University, “Court Moves Beyond the Past in Favouring English,” in the October 19th issue of University World News.

Rosemary Salomone

This is the last of a trilogy of cases that Professor Salomone has examined in which the Court has addressed language policies, favoring English over Afrikaans, adopted in the wake of student protests in 2015 and 2016 to “decolonialize” higher education and offer instruction in English, which black students view as the language of liberation and opportunity. Here she notes that over the course of the three decisions, the Court has shifted toward an increasingly inclusive and less politically charged multilingual narrative placing Afrikaans on a plane with other African languages, without forgetting the wrongs of the past. She further notes that, given the deep-seated tradition of Afrikaans at Stellenbosch and the role that Afrikaans played, both real and symbolic, in maintaining racial exclusion under apartheid, the Court’s decision diminishing Afrikaans’ present-day relevance is historic not just for the university, but for South Africa.
October 22, 2019

Krishnakumar Presents at USC, Seton Hall

On September 25, Professor Anita S. Krishnakumar presented her paper, Backdoor Purposivism, forthcoming in the Duke Law Journal, at a faculty workshop at Seton Hall Law School.  On October 17, she presented Backdoor Purposivism at a faculty workshop at the University of Southern California Law School.


Here is the abstract:

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.

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