White-collar criminal law is characterized by broadly worded statutes subject to varying interpretation. This feature of white-collar criminal statutes has given rise to a pattern of expansive interpretation by prosecutors and periodic narrowing by the Supreme Court. “Textualism” in statutory interpretation—generally speaking, a focus on the objective meaning of statutory language in context—has now become an essential feature of this pattern.
The late Justice Antonin Scalia was the leading expositor of textualist methodology over the last several decades.1 Whatever one’s view of textualism and of Justice Scalia, every judge and every lawyer (for the government and the defense) must now reckon with the precise language of the statute at issue and be prepared to analyze the relevant words of the statute in context. In light of Justice Scalia’s recent death, and the ongoing debate over his judicial philosophy, this article will reflect on the justice’s influence on the interpretation of white-collar statutes—in particular, two obstruction of justice provisions. We focus on the obstruction statutes because they exemplify the open-textured language that often defines white-collar crimes and highlight the significant impact of Justice Scalia’s textualism.
Textualism 101
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