How might judges who purport to adhere to textualism justify their use of estoppel to affect the application of statutes that say nothing about estoppel? This essay addresses this question. It considers six possible arguments that courts have made or might make to rationalize the recognition of unwritten exceptions to statutes in the name of estoppel. These arguments include the following: (1) Even though the statutory provision at issue says nothing about estoppel, some other legislation expressly authorizes courts to invoke equitable principles, including estoppel; (2) The legislation contains an implied term authorizing the application of estoppel principles; (3) Courts have inherent equitable powers that allow them to apply principles of estoppel; (4) The legislature that enacted the statute reasonably expected that courts would interpret it in accordance with accepted canons and background principles, including estoppel; (5) Estoppel creates a cause of action or other legal right that the statute, by its terms, does not address; and (6) Binding precedent compels the application of estoppel principles, even if they conflict with the text of the statute. Each of the six arguments has some validity. Any one of them might justify uses of estoppel in at least some instances. But as this essay will show, none of the arguments provides a general basis upon which a textualist judge can use estoppel to affect the application of statutes that do not address estoppel. The essay therefore concludes that some unresolved tension exists between traditional estoppel principles and textualism.
GW Paper Series
GWU Law School Public Law Research Paper No. 240; GWU Legal Studies Research Paper No. 240
Gregory E. Maggs, Estoppel and Textualism, 54 Am. J. Comp. L. 167 (2006).