Assorted Canards of Contemporary Analysis Redux

Sept. 19, 2019
"Assorted Canards of Contemporary Analysis Redux"
Case Western Reserve University School of Law
Speaker:
The Honorable Amy Coney Barrett
U.S. Court of Appeals for the Seventh Circuit
Summary:
In the fall of 1989, Justice Antonin Scalia delivered the Eleventh Sumner Canary Lecture. It was entitled “Assorted Canards of Contemporary Legal Analysis,” and in it, Justice Scalia described some “ritual errors” of legal reasoning that populate judicial opinions. In this lecture, Judge Amy Coney Barrett will mark the 30th anniversary of Justice Scalia’s lecture by revisiting the same topic. She will consider whether the errors that Justice Scalia identified are still around, and she will highlight some of her own quarrels with legal analysis as it stands in 2019.

[@davidfleuchaus]

Excellent presentation. Some highlights:
“Textualism is a method of statutory interpretation. Textualism insists that judges must construe statutory language consistent with its ordinary meaning - the meaning that it would have had to a skilled user of the language at the time he or she heard it. A law is comprised of words and textualism insists that words mean what they say, not what a judge wishes that they would say. For Textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written.”
Canards:
1. Textualism is Literalism 4:26 (5:31 Purposivism) (7:44 textualism is not Literalism)
2. A dictionary is a Textualist’s most important tool 12:10
3. Textualists always agree 17:05 (19:07 Originalists)
4. “Never forget, it is a constitution we are expounding.” 23:45
5. Judicial Activism is a meaningful term 35:23
6. Congressional silence is acquiescence 39:23
“Textualists construe language at the level of generality at which it is written.”

[@Uhtredrag1080]

She's going to be a fantastic Justice. Thank you, Trump.

[@Jswalden86]

I really like her observation that the text must govern because it (and not intent, modern meaning, or some other atmospherics) is what passed the Presentment Clause. This point has always seemed very clear and obvious to me, and I have not seen it concisely stated before. (Although I am sure it has been at some point, by someone.)
I'm not wild about the circumstances of Judge Barrett's nomination to the Supreme Court. And I worry about the price that will ultimately be paid for it. But if she is ultimately confirmed, she looks like she will be a worthy pick of sound jurisprudence.

[@davidlewis3295]

This reassures me she won't legislate from the bench.

[@garymclaughin]

Agree get a lawyer to be a bridge, in a court of law. Otherwise keep it brief point and try to tell them what you need. I find it easier to communicate through your eyes as well. But it has to be in person.

[@garymclaughin]

Fun now to live in Northern Thailand. But have practice from also lived in Yukon and growing up in New Brunswick beside Quebec 50 percent Bi lingual.

[@JWC5535]

How would an originalist decided on Brown vs Board of Education?

[@65slick49]

Scalia himself discusses this in another video, where he says he agrees with Harlan's dissent in Plessy v Ferguson (which Brown v BOE overruled). "You begin with the text, and the text prohibited racial discrimination" - th-cam.com/video/jmv5Tz7w5pk/w-d-xo.html go to 23:23.

[@waheepsamy5080]

✝️💒💕✝️

[@thebackbencher666]

Why do we all have fall under Madison or take it seriously? The court took the power of judical review upon itself and it absolutely should be over ruled.

[@raquanwilliams5572]

I absolutely disagree. The primary function of the judiciary is that of judicial review due to the courts being expressly given the power to apply the law. They cannot enforce their rulings, but adjudication of our legal affairs occurs in the judiciary.

[@thebackbencher666]

@@raquanwilliams5572 Incorrect. Prior to Marbury v Madison it was understood that the court wasn’t the only and final arbiter of what was and what wasn’t constitutional.