April 29, 2014

A Supreme Court Paradox!

In the current version of the Supreme Court decision Octane Fitness v. Icon Health & Fitness up at Cornell's Legal Information Institute, footnote 1 reads "Justice Scalia joins this opinion except as to footnotes 1-3." This is not quite a Liar Paradox, but close. Whether the view attributed to Scalia is consistent depends on some interpretive questions: does Scalia merely refrain from affirming the content of footnotes 1-3, or does he actively reject them? Does he reject each of the footnotes individually, or only the conjunction of them? If he actively rejects each of footnotes 1-3 individually, then which part of footnote 1 does he disagree with: the claim that he joins the opinion, or the claim that he doesn't join footnotes 1-3? If he disagrees with the claim that he joins the opinion, then there are some serious shenanigans going on. If he actively disagrees with the claim that he doesn't join footnotes 1-3, that means he thinks that he agrees with footnotes 1-3, but of course footnote 1 asserts that he does not agree. Maybe the moral is that Justice Scalia has no idea what footnote 1 says: he believes that he disagrees with footnote 1, but, unbeknownst to him, footnote 1 in fact asserts that Scalia disagrees with footnote 1!

For the record, Justice Scalia does not agree with this statement.

(More seriously, I suspect that this is a typesetting error and the footnote about Scalia not joining the footnotes was meant to be a first unnumbered note - hence the '*' - and Scalia disagrees with the notes numbered 2-4 in which there is an inquiry as to legislative intent, contrary to Scalia's version of originalism.)

Posted by Kenny at April 29, 2014 5:06 PM
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