Jonathan R. Siegel (George Washington University Law School) has posted The Legacy of Justice Scalia and His Textualist Ideal
(85 Geo. Wash. L. Rev. 857 (2017)) on SSRN. Here is the abstract:
The late Justice Antonin Scalia reshaped statutory interpretation. Thanks to him, the Supreme Court has become far more textualist. Nonetheless, Justice Scalia never persuaded the Court to adopt his textualist ideal that “the text is the law.” In some cases, the Court still gives greater weight to other indicators of statutory meaning, such as perceived statutory purpose. Fundamental institutional features of courts and legislatures — particularly the fact that legislatures act generally and in advance, whereas courts resolve particular questions at the moment a statute is applied — justify this rejection of the textualist ideal.
And from the paper:
Because the legislature acts generally and in advance, it must inevitably fall prey to problems that give rise to interpretive difficulties. Two such problems account for a substantial portion of them. The first is the problem of generality. The legislature, acting in advance, can never anticipate every situation to which its statutes will apply, and it therefore writes general language that covers some situations that legislators would probably not wish to cover if these situations had occurred to them. The second problem is simple statutory drafting error, such as occurred in the CAFA example discussed above. Because the legislature acts generally and in advance, it can never catch every drafting error in its work product.