The Pretext of Textualism: Disregarding Stare Decisis in 14 Penn Plaza v. Pyett
Lewis & Clark Law Review, Vol. 14, p. 825, Fall 2010
Loyola University Chicago School of Law, Public Law and Legal Theory Research Paper No. 2009-022
35 Pages Posted: 17 Feb 2010 Last revised: 23 Aug 2010
Date Written: February 2, 2010
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.
Keywords: Statutory Interpretation, Textualism, Arbitration, Legislative History
JEL Classification: K12, K40
Suggested Citation: Suggested Citation