Mary D. Fan, Textual Imagination, 111 YALE L.J. 1251 (2002), https://digitalcommons.law.uw.edu/faculty-articles/645
Textualism, Textual Imagination, Congressional Intent, Statutory Interpretation, Buckhannon, Catalyst Theory, Attorney's Fees, Civil Rights, Private Attorneys General
Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring suit, overturning the rule of every circuit except the Fourth and Federal Circuits. The catalyst theory prevents a defendant from avoiding an award of attorney’s fees through tactics like mooting a promising suit, by positing that a litigant may still “prevail” by obtaining relief without judgment. This Case Note suggests that judicial imagination is better constrained by a cross-hatch of textual and historical sources of textual meaning and congressional intent, rather than a dialectical shift to only textual sources. Rules on permissible aids should consider reliability, accessibility, and the democratic character of the sources. This will give Congress incentive to refine rules on creation of these sources to incorporate these goals, while creating guides for the courts to prevent judicial imagination so wide-ranging as to constitute judicial legislation.