Today’s Ad Law Reading Room entry is “Standard Textualism,” by James Macleod. Here is the abstract:

For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been presumed to produce typically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism would produce a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism drive this result. The first is its emphasis on ordinary language and communication. Modern textualism would typically produce standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive to resolve as many cases as possible using only the text’s clear communicative content. In close cases, the search for something both case-dispositive and “clearly” communicated by the text would lead to minimalist, fact-bound, standard-like interpretations.

To demonstrate, the Article draws on a review of every divided Supreme Court statutory interpretation decision issued in the past three Terms. The cases in the dataset turn out rarely to pose the kinds of conflict which decades of statutory interpretation literature might lead one to expect. Instead of pitting text-based, rule-producing interpretations against purpose-based, standard-producing ones, today’s split decisions typically concern the interpretation of standard-like statutory text; the more strictly text-based the interpretation, the more standard-like the resulting legal content.

That’s not to say that the Court’s self-proclaimed textualists abide by their theory in practice. Every member of the Court, textualist or not, routinely substitutes Justice-made rules for legislature-made standards. The difference is that modern textualism is uniquely incapable of justifying that practice, let alone guiding or constraining those engaging in it. Modern textualism was not made for judicial rule-creation, and it shows.

After criticizing textualist practice on this score, the Article argues that “standard textualism” (i.e., modern textualism, understood in light of its tendency to produce standards) may turn out to be a surprisingly attractive prescriptive theory of interpretation, for both traditional textualists and modern progressives alike. Granted, modern textualism might be no more constraining than its alternatives when it comes to determining who wins and who loses in the case at hand. But by limiting Justices’ freedom to create rules that will replace statutory standards going forward, the method forecloses what is often the more consequential, if less frequently discussed, exercise of discretionary power on today’s Court.

Ad Law Reading Room is a little late to the party on this one, which has already achieved coveted “download it while it’s hot” and “download of the week” status over at Professor Larry Solum’s Legal Theory Blog. But “Standard Textualism” should be of great interest to the administrative law crowd in addition to the legal theory generalist. After Loper Bright, we know that courts are firmly in charge when it comes to the practice of statutory interpretation. And these days, most courts say their job is to apply the text. What does that mean? Macleod provides a new and surprising take on that well-worn question. Arguing that much statutory text is more standard-like than has been appreciated, Macleod contends that courts disserve textualism when they fashion rules where Congress has not chosen to supply them. The result is a sophisticated defense of a kind of judicial minimalism that counsels courts to resolve cases by leaving standards as close to untouched as possible.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.