Kevin Tobia
@kevin_tobia
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Today’s Pulsifer’s decision exemplifies the Supreme Court’s ongoing debate about textualism. They are “all textualists now,” but the disagreements about textualism continue. Kagan v. Gorsuch. A thread…
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Gorsuch also refers to an empirical study of ordinary Americans: Most readers understand “does not have, A, B, and C” jointly (with Pulsifer) not distributively (with the government).
This is the first time the Court refers to survey evidence to inform "ordinary meaning."
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Interesting Supreme Court shifts / not Scalia's textualism...
In today's Rudisill decision, Kavanaugh & Barrett's concurrence critiques the pro-veteran canon and similar canons (left). In 2011 the Court's textualists favored this "long applied" canon (Henderson, right)
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Brilliant piece on "administrative enslavement" by
@adamsonofdavid
Quote from the conclusion...
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Legal positivism is more popular among American law professors than among philosophers, suggests this poll and prior surveys
Which group has a higher proportion of legal positivists: Professors of philosophy or professors of law?
Answer in the next tweet...
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Which group has a higher proportion of legal positivists: Professors of philosophy or professors of law?
Answer in the next tweet...
Professors of philosophy
71
Professors of law
177
see results
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Answer: Law profs.
74% of law profs. "accept" or "lean towards" legal positivism, vs. 39% of philosophers
Sources:
philpapers survey, 2020: ,
What do law professors believe, 2023:
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@_jlnunes
@MtthsBrnkmnn
@alma_diamond
we really need some comparative follow-up studies!
@EbrightYon
@MtthsBrnkmnn
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Justice Gorsuch’s dissent does not pull punches, writing that that the majority elevates policy analysis over ordinary meaning and a longstanding commitment to lenity.
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I'd be curious for thoughts about this difference: why are law profs. almost twice as likely to endorse legal positivism than phil profs? And is one group more expert on the question?
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Gorsuch: “And” means “and”, “or” means “or.” Congress knows that, and ordinary readers know that.
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@MtthsBrnkmnn
@alma_diamond
Thanks! I’m not sure I’m following: are you saying that in your experience, German *law* faculty are largely anti-positivist? If so, that’s the opposite of the finding here about American law faculty
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Why should we read the “eligibility checklist” as does the government? Kagan’s answer: Pulsifer’s reading creates superfluity and sorts crimes in an irrational way. As such, Kagan concludes, there is no ambiguity between the two readings.
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For Gorsuch, this is all about how the ordinary reader would understand the statute's language.
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There are small differences between these two surveys, e.g. the philsurvey contrasts positivism with "non-positivism", while the law prof survey contrasts it with "natural law" as a theory of the "nature of law." But assuming those don't change the main result...
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Gorsuch (joined by Sotomayor and Jackson) reads the criterion to require that a defendant does not have A, B, and C.
So a defendant with only B is eligible under Gorsuch’s reading but not Kagan’s.
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Kagan writes that “We start with [the provision's grammatical structure].”
But the argument quickly turns to homey examples from ordinary language: the hungry caterpillar, etc. These, and legal examples, show that verbs can distribute to every item on a list joined by "and."
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The First Step Act sets out a “safety valve” provision. As Kagan’s majority opinion explains:
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Kagan (joined by Robert, Thomas, Alito, Kavanaugh Barrett) reads this criterion strictly, requiring that a defendant does not have A, a defendant does not have B, AND a defendant does not have C.
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The thrust of Kagan’s argument is that grammar does not resolve Pulsifer; context does.
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Sidenote: This thread focuses on textualism, not the decision's consequences. Justice Gorsuch’s dissent elaborates that important impact:
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@brian_wolfman
yes, the philosophers are more evenly divided between positivism and non-positivism
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@fjimenez_c
The Bourget and Chalmers survey asks about moral realism—fwiw more philosophers endorse realism than nonpositivism, but I agree with your prediction that these answers are correlated
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Gorsuch offers replies about superfluity (21-25) and critiques the government and majority’s appeals to “purpose”, disguised in the language of a “rational” Congress.
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@brian_wolfman
So I agree with your suggestion: the difference has something to do with US legal training and experience (and/or the training and experience of philosophers)
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@brianlfrye
thanks brian! is the thought that "natural law" calls to mind conservative legal theory, which pushes (largely non-conservative) participants to the other option?
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@GlexAreen
@brianlfrye
I also wonder whether a lot of current US law profs associate "natural law" with Dworkin -- which would not have the religious or conservative associations. But I don't have data to back up that hunch
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@brian_wolfman
Something interesting suggested by several replies: this pattern may not be the same in other countries.
I also don’t think this is primarily a selection effect in the US (e.g. positivists drawn to law school)
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full article:
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@GlexAreen
@brianlfrye
thanks Alex, glad you share these thoughts. By "the results" I take you to mean the comparison of these two questions across different studies...
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@EbrightYon
The law prof survey is US. The philosopher one is international, but when you filter it to be
US-only, the positivism results are similar (37%)
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