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Unpublished Paper
Textualism and Obstacle Preemption
ExpressO (2012)
  • John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article first sketches the history of both textualism and obstacle preemption, showing why the two doctrines seem so obviously to be in tension with one another. It then introduces the field of linguistic pragmatics — the study of context’s role in determining meaning — paying special attention to the theory of “scalar implicature,” a framework that attempts to systematize our intuitions that we often say one thing but imply another. The Article then proceeds to apply this theory to the obstacle-preemption case law, contending that scalar implicature, properly adjusted to the legal context, can justify the result in most obstacle preemption cases. Next, the Article argues that textualists are committed to accepting this justification of obstacle preemption because of two deep theoretical presuppositions of their theory. Finally, the Article closes by suggesting that this justification of obstacle preemption not only challenges widely shared assumptions about the inconsistency of textualism and one of the most common types of preemption; it also has the potential to reshape our understanding of both textualism and obstacle preemption.

  • preemption,
  • obstacle preemption,
  • legal theory,
  • interpretation theory,
  • legal interpretation,
  • formalism,
  • textualism,
  • federalism,
  • statutory interpretation
Publication Date
August 17, 2012
Citation Information
John D Ohlendorf. "Textualism and Obstacle Preemption" ExpressO (2012)
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