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Publication Date

2013

Abstract

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, property
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.

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