A Textualist Interpretation of the Visual Artists Rights Act of 1990

Brian L. Frye

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For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether you like it or not.

But what are the practical implications of textualism? Does it

always reach the “right” result? And when it produces idiosyncratic

results, what should courts do with them?

This essay provides a textualist interpretation of a relatively

obscure statute, the Visual Artists Rights Act of 1990. It observes

that the most plausible textualist interpretation of the statute is the

opposite of the statute’s obvious intention and purpose. And it asks

whether that is a problem, something we should celebrate, or

something we should just accept as an inevitable consequence of

statutory interpretation.

Original languageUndefined/Unknown
JournalLaw Faculty Scholarly Articles
StatePublished - Jan 1 2021
Externally publishedYes


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