TEXTUALISM, THE AUTHORITATIVENESS OF CONGRESSIONAL COMMITTEE REPORTS, AND STANLEY SURREY

• Published in: Law and contemporary problems 2023-03, Vol.86 (2), p.107
• Main Author: Yin, George K
• Format: Article
• Language: English
• Subjects: 20th century; Analysis; Careers; Committees; Criticism and interpretation; Criticism, Textual; Influence; Legislation; Legislative bodies; Legislative reporting; Scalia, Antonin; Statutes; Surrey, Stanley S; Tax law; Tax legislation
• ISSN: 0023-9186; 1945-2322

When Stanley Surrey—possibly the most prominent tax academic of the twentieth century—died in 1984, the school of thought sometimes known as the “new textualism” that has gained such influence in the United States over the last three decades had not yet emerged.1 To be sure, there had been scholarship and debate on statutory interpretation including an important article by Professor Max Radin, a colleague of Surrey’s during his brief time at Berkeley Law, whose positions—such as the undiscoverable nature and potential irrelevance of congressional intent—have since been repeated by some new textualists.2 But the more pointed assertions of Justice Scalia, including his almost complete disdain for legislative history as an interpretive aid, had not yet widely entered the public arena. Surrey would have been very interested in this development. He had spent almost his entire professional career working with statutes and thinking about issues such as statutory interpretation. Early in his career, he identified himself as being what would now probably be termed a “purposivist,” someone who thinks legislation is a purposive act and statutes should be construed to carry out that purpose.