Vanderbilt Law Review


Edward L. Rubin

First Page



Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance on legislative history. While Scalia has failed to persuade a majority of Supreme Court Justices, judges in general, or scholarly observers, his belligerently stated views have produced observable results in the increased reluctance of judges to utilize other interpretive approaches, and the continued reluctance of scholars to dismiss his arguments as patently incorrect. Katzmann makes the implicitly recognized defects in Scalia's arguments genuinely obvious. Once it has been widely read, as it definitely should be, the judicial and scholarly reluctance will, one hopes, be overcome. Nothing is likely to persuade Scalia, but this book should have the salutary effect of leaving him alone to wave his dictionary at the empty air.