Interpretive Method and the Federal Rules of Evidence: A Call for a Politically Realistic Hermeneutics
![handle is hein.journals/hjl32 and id is 335 raw text is: ARTICLE
INTERPRETIVE METHOD AND THE
FEDERAL RULES OF EVIDENCE:
A CALL FOR A POLITICALLY REALISTIC
HERMENEUTICS
ANDREW E. TASLITZ*
In a companion article, Professor Taslitz challenged the claims of many
evidence scholars that the United States Supreme Court has adopted a
plain meaning or new textualist approach to interpreting the Federal
Rules of Evidence.1 Rather, he argued, the Court has implicitly followed
a more flexible, wide-ranging approach that considers varied data beyond
the text.
This Article argues that the Court has recently explicitly and vigorously
moved closer to this more flexible approach. The Article more carefully
defines this approach-this politically realistic herneneutics -defend-
ing it against plain meaning by drawing on the teachings of political
science, economics, and literary theory.
I. THE COURT'S MOVEMENT TOWARD A POLITICALLY
REALISTIC HERMENEUTICS
In a companion article to this piece, I argued that those evi-
dence scholars claiming that the United States Supreme Court
has followed a plain meaning approach to interpreting the
Federal Rules of Evidence were wrong.2 Plain meaning or new
textualist theorists argue that the clear, ordinary meaning of
a statute's words should control.' Moreover, where there is lack
of clarity, they will sometimes draw first on the structure of the
statute-the form and language of its other purportedly clear
*Professor, Howard University School of Law; former Assistant District Attorney,
Philadelphia, Pa.; B.A., Queens College, 1978; J.D., University of Pennsylvania Law
School, 1981.
The author thanks his wife, Patricia V. Sun, Esq., and Professor David Leonard for
their numerous helpful comments on earlier drafts of this Article. Appreciation also
goes to the author's research assistants, Cheryl Moat, Dahli Myers, and Mikee Gildea
for their help in completing this Article, and to the Howard University School of Law
for its financial support of this project.
I See Andrew E. Taslitz, Daubert's Guide to the Federal Rules of Evidence: A
Not-So-Plain-Meaning Jurisprudence, 32 HARv. J. ON LEGIS. 3 (1995) [hereinafter
Taslitz, Daubert's Guide].
21d. at 3-7.
3WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 38 (1994)
[hereinafter DYNAMIC INTERPRETATION].](ViewImageLocal?handle=hein.journals/hjl32&div=14&collection=&method=preview&ext=.png&size=3)
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Interpretive Method and the Federal Rules of Evidence: A Call for a Politically Realistic Hermeneutics
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