Baseball Crank
Covering the Front and Back Pages of the Newspaper
August 8, 2003
LAW: Originalism Sin?

Law Professor Jeff Cooper (link via Howard Bashman) criticizes Justice Scalia's theory of originalism on the basis that it's too much work: because serious historical research into the original meaning of a particular provision is expensive for litigants, nearly impossible for trial and appellate judges, and often unreliable when done by Supreme Court Justices and their clerks, the argument goes, originalism simply doesn't work even if it's attractive in theory.

There's some weight to this objection; what's interesting is that it essentially mirrors one of Scalia's own objections to the use of legislative history in statutory interpretation (from his concurrence in Crosby v. National Foreign Trade Council):

[T]he portion of the Courtís opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinionís size and (since it is in footnote type) even more of the opinionís content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counselĖwhich makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes.

Posted by Baseball Crank at 6:28 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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