The Chief Justice’s Brand of Textualism

If you’re reading this, you already know that the Supreme Court issued King v. Burwell today and that it was a 6-3 win for the government, with Chief Justice Roberts writing for the majority. The Chief’s opinion focused on the text, context, structure, and “scheme” of the statute in concluding that the phrase “established by the State under section 1311” includes exchanges established by the federal government under section 1321. Rick Hasen writes that this aspect of the Court’s opinion “rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.”

I agree generally with this sentiment. King shows that textualism can be flexible. But I want to use this post to put a bit of a finer point on it. Continue reading


My University of Washington School of Law Commencement Address: “It Depends”

The UW School of Law held its commencement ceremony yesterday. Unlike other schools, UW does not invite outside dignitaries to speak. Instead, the graduating class selects one faculty member and two students to each give a speech lasting about five or six minutes.GatesHallBG

This year’s graduating class was the first class of students I ever taught, so I was extremely pleased and honored that they selected me as their faculty speaker. I was also extremely pleased that I spoke at the start of the program and therefore did not have to follow the two excellent student speakers, who were the keynotes of the ceremony.

As one of my colleagues always reminds me: You never want a single-use presentation; if you put work into something, make sure you can use it a few times. So with that in mind, I’ve turned my outline/notes into a written “script” of sorts and I’m posting it here. Thoughts and comments welcome! Continue reading