Second-Generation Textualism

21 Oct 2010 10:08am John F. Manning 

In his perceptive histories of the late-twentieth-century revival of interest in statutory interpretation theory, Philip P. Frickey, always modest, predictably failed to account for his own large contribution to the debate. Assessing this contribution, of course, would present difficulty for anyone, as the work spans so widely. With his frequent coauthor, William Eskridge, Professor Frickey explained statutory interpretation as a form of practical reasoning that transcends any single foundational approach to the subject; thoughtfully explored the utility and dangers of the Supreme Court‘s renewed interest in canons of construction, both substantive and procedural; and developed an intellectually rich casebook that reintroduced Legislation as a core element of the law school curriculum. Writing on his own, Professor Frickey enriched our understanding of the canon of constitutional avoidance as a pragmatic instrument for a Court to use in times of political peril, the transitional problems associated with abrupt changes in the Court‘s approach to statutes, and the importance of judicial craft in statutory cases.

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