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Moses on 15 Penn Plaza LLC v. Pyett

By Lawrence Solum

Margaret L. Moses (Loyola University Chicago School of Law) has posted The Pretext of Textualism: Disregarding Stare Decisis in 14 Penn Plaza v. Pyett (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract:

In 14 Penn Plaza LLC v. Pyett, the Supreme Court ignored the principles of stare decisis and justified its disregard of precedent established thirty-five years earlier in Alexander v. Gardner-Denver on the basis of changed judicial methods of interpretation. This article will examine how the Supreme Court, in Penn Plaza, as well as in other decisions, has used the judicial method of interpretation known as textualism, including a version I call "no-text textualism," to reinvent statutes, abandon precedent, and create its own norms in the field of arbitration. Penn Plaza serves as a strong invitation to Congress to adopt new legislation that will overturn inconsistent ?legislation? created by the Court. The Penn Plaza decision demonstrates how the Supreme Court has freely disregarded a statute's text, its legislative history, and even the Court's own judicial precedent when fashioning a law of arbitration to suit its policy preferences. In the field of arbitration, the Court's use of textualism has frequently served as a pretext for creating national law and policy that differ substantially from statutory text and from purpose as evidenced by legislative history. Instead, the current law of arbitration represents judicial policies independently crafted by the Court and unrelated to statutes enacted by Congress.

Full post as published by Legal Theory Blog on February 18, 2010 (boomark / email).