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Kagan Discusses Statutory Interpretation at Law School

By Jonathan G. Adler, Contributing Writer

Supreme Court Associate Justice Elena Kagan discussed what she described as “remarkable” changes in interpretation of statutory law in a conversation with law professor John F. Manning ’82 during an event at the Law School on Tuesday.

Law School Dean Martha L. Minow introduced Kagan, one of her predecessors as dean. She noted that this lecture series is named after Supreme Court Associate Justice Antonin G. Scalia, whom Minow described as Kagan’s “sparring partner, hunting partner, and friend.”

The talk centered on what Minow called the “revolution” in statutory interpretation over the past several decades that has shifted the focus in the courts from common law to statutory law. Statutory law is written by legislatures, whereas common law is the collection of legal precedents set by court decisions.

“I’m not sure if somebody said to me ‘statutory interpretation’ I would even quite have known what that meant,” Kagan said, referring to her years as a student at the Law School. “It was not really taught as a discipline.”

Much has changed since that time, Manning noted, and now courts pay far more attention to the text and wording of statutory law than they ever did before. Kagan ascribed much of this change to her colleague, Scalia, whom Kagan said had “more to do with this than anybody.”

“Justice Scalia has taught everybody how to do statutory interpretation differently,” Kagan said. Following Scalia’s example, more legal thinkers consider the meaning, wording, and understanding of statutory texts, in a school of thought known as textualism.

Kagan said she believes that Scalia’s part in this change in the role of the judiciary will earn her colleague, with whom she has been known to have ideological disputes, a place in history.

“The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names,” Kagan said, referring to herself and her colleagues on the Court. “I think that is really not the case with Justice Scalia, whom I think is going to go down as one of the most important, most historic figures on the Court.”

Audience members who packed into the auditorium in the Wasserstein Campus Center where the talk took place said they were struck by Kagan’s candor.

“It was amazing that she described herself as a textualist,” said visiting legal researcher Takahiko Iwasaki. “That was an amazing and candid thing to say.”

“I feel like she has a very down-to-earth way of portraying sometimes very cerebral issues,” said Daniel A. Parino, a student at the Law School. “It’s rare to see someone with that much influence and hear what they have to say.”

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