Textualism and Obstacle Preemption

Commentators, both on the bench and in the academy,have perceived an inconsistency between the SupremeCourt\u27s trend, in recent decades, towards an increasinglyformalist approach to statutory interpretation and theCourt\u27s continued willingness to find state laws preemptedas obstacles to the accomplishment and execution of thefull purposes and objectives of Congress\u27 --so-called obstacle preemption. This Article argues that by givingthe meaning contextually implied in a statutory textordinary, operative legal force, we can justify most of thecurrent scope of obstacle preemption based solely ontheoretical moves textualism already is committed tomaking.The Article first sketches the history of both textualismand obstacle preemption, showing why the two doctrinesseem so obviously to be in tension with one another. It then introduces the field of linguistic pragmatics-thestudy of context\u27s role in determining meaning-payingspecial attention to the theory of scalar implicature, aframework that attempts to systematize our intuitions thatwe often say one thing but imply another. The Article thenproceeds to apply this theory to the obstacle-preemptioncase law, contending that scalar implicature, propertyadjusted to the legal context, can justify the result in mostobstacle preemption cases. Next, the Article argues thattextualists are committed to accepting this justification ofobstacle preemption because of two deep theoreticalpresuppositions of their theory. Finally, the Article closesby suggesting that this justification of obstacle preemptionnot only challenges widely shared assumptions about theinconsistency of textualism and one of the most commontypes of preemption; it also has the potential to reshapeour understanding of both textualism and obstaclepreemption