Justice Antonin Scalia succeeded in making textualism the predominant method of legal interpretation. But now that an increasing number of jurists are committed to that method, the question of how to do it well has acquired an even greater urgency. However, there are fundamental disagreements. According to Professor Will Baude, textualists risk arriving at “incomplete or misleading answers to important questions about the law” unless they learn to “supplement” plain text with “unwritten law, law that governs both interpretation and background principles against which interpretation takes place.” Is this “unwritten” law simply the canons of construction as articulated by the Supreme Court, pre-Erie General Law, the Natural Law, the Anglo-American legal tradition, the common law of the States, or something else? The answer certainly has important implications for judges, and it might vary depending on whether a litigant is in a federal or state forum, or whether the text to be interpreted is a statute, constitution, or a private-law matter like a contract. For textualists, determining if, when, and how these unwritten sources of law should be consulted are among the most pressing issues of the day. Panelists considered these questions from their various perspectives from academia and from the bench.

Featuring:

- Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School
- Prof. Emily Bremer, Professor of Law, University of Notre Dame School of Law
- Prof. Robert Leider, Assistant Professor of Law, Antonin Scalia Law School, George Mason University
- Hon. Amul Thapar, U.S. Court of Appeals, Sixth Circuit
- Moderator: Hon. Barbara Lagoa, U.S. Court of Appeals, Eleventh Circuit

* * * * *

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.