Super-esoteric concurring opinions in this moot case about three judge district courts in election disputes from CA5. I’ve only skimmed, but it’s a statutory interpretation de-lite. I will tweet more later.
ca5.uscourts.gov/opinions/pub/1…
ca5.uscourts.gov/opinions/pub/1…
Here is Judge Costa leading off for one group, which is the putative “left” plus Chief Judge Owen and Judge Davis. 1/ 
As we will see, everyone agrees you start with the text. (Interesting comments about the person on the street here from J. Costs) /2
Mississippi’s argument creates a convoluted scheme, Judge Costa says (also, woot woot, citation to my case down there) /3
Really interesting engagement about how to do textualism with Judge Willett here. /4
Oh that’s a lovely sentence from Costa (explaining that a little surplusage is ok)
/5
/5
Another very nice phrasing here (the footnote says that Judge Willett accepts the use of statutory history, not legislative history) /6
Heh. /7 (to end the Costa opinion)
On to Judge Willett, who confronts Costa’s argument that Mississippi’s argument had never been made because it was bad. Note the trademark pairing - elemental but not elementary. /8
One might profitably read this from Judgr Willett in the context of the controversy about Justice Gorsuch’s Bostock opinion /9
Interesting discussion of the series-modifier canon from DRW /10 (see next tweet for the exception he thinks applies)
So when there's a second "the," DRW says, you don't apply the series modifier canon. /11
An interesting debate in the footnote about special lawyer only grammar rules /12
A response from Judge Willett to Judge Costa's point that a little surplusage is ok /13
Here is Judge Willett's discussion of legislative v. statutory history /14
Just to be clear, Judge Willett does *not* like legislative history /15
Judge Willett is perhaps the first lower court judge to address Bostick. He says the lesson is to apply language like computer code /16
And he calls the interpretive method "ascetic" /17
Sorry for the typo in the case name.
Judge Willett has an interesting digression into the problems with the elephants in mouse holes phrase. /18
So I have never really thought about the order in which one applies textual v. substantive canons - it just hasn't come up - but now I'm going to to have to pay mind to it I think! /19
Just pulling this out for legal writing purposes - there's a sequence to things because there's a supremacy to things /20
Finally, Judge Oldham is over here on his own in a very interesting opinion explaining why when an opinion you won gets vacated under Munsingwear, you didn't win - it's like a rain shortened baseball game. /21
