The chaotic pseudotext

Michigan Law Review

Volumn 94, Issue 7, 1996, Pages 2178-2227

  Campos, Paul F ^a,b  

^a UNIVERSITY OF COLORADO   (United States)

^b Byron R White Center for American Constitutional Study

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EID: 1542549890     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1289819     Document Type: Article

References (136)

1. See NOVALIS, PHILOLOGICAL FRAGMENTS 205 (1804),
2. quoted in André Maurois, Preface to JORGE LUIS BORGES, LABYRINTHS at xii (preface trans. Sherry Mangan) (Donald A. Yates & James E. Irby eds., 1964).
3. See PIERRE SCHLAG, LAYING DOWN THE LAW (forthcoming 1996 [hereinafter LAYING DOWN THE LAW).
4. H.L.A. HART, THE CONCEPT OF LAW 1 (1961) (emphasis added).
5. So complete is this marginalization that even a legal theory as peculiar as Ronald Dworkin's - a theory that claims, among other things, that there are such entities as legal "principles" that are neither positive legal rules nor autonomous moral norms, and that always generate a single correct legal answer in "hard" cases - is treated with a symptomatic combination of respectful attention and fundamental indifference by an academic discourse whose real interests obviously are elsewhere. For an acute criticism of Dworkin's claims about legal principles, see Larry Alexander & Ken Kress, Against Legal Principles, in LAW AND INTERPRETATION 279 (Andrei Marmor ed., 1995).
6. As we shall see, the true situation is somewhat more complex than this claim would seem to suggest. Many apparently epistemological legal arguments are making highly, contestable, yet basically covert, ontological claims. See infra note 101 and accompanying text.
7. See, e.g., Harry T. Edwards, The Growing Disjunction between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1991).
8. WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 618 (1988).
9. What in this essay I will call the "chaotic" structure of legal argument can be understood, in part, as an attempt to give an account of the nature and causes of what in the realist and critical literatures has been thought of as the problem of legal indeterminacy. See, e.g., KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960);
10. ROBERTO M. UNGER, KNOWLEDGE AND POLITICS (1975);
11. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935);
12. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979). Such indeterminacy arguments, however, have tended to be framed in epistemological terms. These critiques usually involve some variation of the claim that, given the state of the relevant legal materials, it is difficult or impossible to determine if a dispute has been decided correctly, at least without referring to what in terms of the formalist orthodoxy are considered extra-legal considerations. See, e.g., Duncan Kennedy's elaboration of this point, quoted infra note 71. By contrast, the claim in this article is not that the chaotic nature of legal argument makes it difficult or impossible to answer the epistemological question of whether or not a case has been correctly decided. My claim here is that if we properly understand the conceptually chaotic structure of our present legal system, we also will understand that this chaotic structure makes the question, in an important sense, a meaningless one.
13. In this regard - as well as because it actually was written by the judge who signed it - Sinclair is an unusual opinion. One question outside the scope of this article is how often and to what extent judicial opinions themselves manifest what I call "pseudotextual" characteristics.
14. See Hannah v. Peel, K.B. 509 (1945), reprinted in JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 113 (3d ed. 1993).
15. In re Sinclair, 870 F.2d 1340, 1341 (7th Cir. 1989) (citations omitted).
16. 870 F.2d at 1341.
17. See generally ERIC REDMAN, THE DANCE OF LEGISLATION (1973).
18. Sinclair, 870 F.2d at 1341.
19. Section 256(1) reads: (d) The Court may convert a case under this chapter to a case under chapter 12 or 13 of this title only if - (1) the debtor requests such conversion; (2) the debtor has not been discharged under section 1141(d) of this title; and (3) if the debtor requests conversion to chapter 12 of this title, such conversion is equitable.
20. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990);
21. Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" New Legal Process, 12 CARDOZO L. REV. 1597, 1598 (1991).
22. See Frigaliment Importing Co. v. B.N.S. Intl. Sales Corp., 190 F. Supp. 116 (D.N.Y. Dec. 27, 1960).
23. STANLEY FISH, Is THERE A TEXT IN THIS CLASS? 271 (1980) (emphasis added).
24. National Labor Relations Act, § 2(2), 29 U.S.C. § 152(2) (1994).
25. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).
26. See Paul Campos, That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text, 77 MINN. L. REV. 1065, 1090-93 (1993) (demonstrating that if the interpreter really is reading, then the interpreter is searching for the author's meaning, which itself is not amenable to methodological regulation; conversely, if the "interpreter" is doing something else, then the putative interpreter really is not interpreting, but rather is engaged in some methodologically driven form of creative misreading).
27. In re Sinclair, 870 F.2d 1340, 1341-42 (7th Cir. 1989) (citations omitted).
28. "[D]espite the fact that law is . . . a rich amalgamation of feudal social aesthetics, nineteenth century juristic science, early twentieth century legal realist policy analysis, legal process proceduralisms, and Warren Court normativity, courts routinely represent this rather dissonant melange as if it were coherent." Pierre Schlag, The Legal Form of Being, in LAYING DOWN THE LAW, supra note 2.
29. 870 F.2d at 1342 (citations omitted).
30. Here I am asserting what I argue for elsewhere: as Steven Knapp and Walter Benn Michaels have demonstrated, the semantic meaning of a text is identical to the linguistic intentions of its author, and it follows from this that the correct interpretation of a text is always the act of successfully determining those intentions. See Steven Knapp & Walter Benn Michaels, Against Theory, in AGAINST THEORY: LITERARY STUDIES AND THE NEW PRAGMATISM 11 (W.J.T. Mitchell ed., 1985);
31. Paul Campos, Against Constitutional Theory, 4 YALE J.L. & HUMAN. 279 (1992) [hereinafter Campos, Constitutional];
32. Paul Campos, Three Mistakes About Interpretation, 92 MICH. L. REV. 388 (1993).
33. I place "interpreter" and "interpretation" in quotation marks to indicate that I am using these words in a conceptually distinct sense from a usage that signifies the attempt to discover what the author of a text meant to say. Such "interpretive" methods replace the author's text with a verbally identical artifact whose meaning is determined by the intentions of some meaning-conferring agent other than the author of the original text. Thus in this style of "interpretation" the putative "interpreter" of the text becomes the author of a new text.
34. For an argument that legislation should not be considered a communicative enterprise, see Heidi M. Hurd, Sovereignty in Silence, 99 YALE L.J. 945, 990 (1990).
35. In re Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989).
36. A subjective fact - a fact about a state of mind - is just as much a fact as a fact about an object. The pervasive suspicion that it is not - because such facts are not "objective" - is, as John Searle argues, a residue of what he identifies as a kind of dualistic anxiety. See JOHN R. SEARLE, THE REDISCOVERY OF THE MIND 93-100 (1992).
37. In much the same way that the meaning of a text is identical with its author's intentions. See supra note 25 and accompanying text. In both cases, the semantic content of the linguistic artifact (a rule, a text) must be identical with the beliefs or intentions of some meaning-conferring agent or agents.
38. Obviously, I am using the word "rule" here in its purely prescriptive sense. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 17-37 (1991).
39. The phrase "subjective belief" is of course redundant - all beliefs are subjective in this sense - but I employ it here for clarity's sake.
40. Another redundant phrase. All rules are social by nature: even a rule for myself, to be deployed, must interact between a previous and a present self.
41. Which is to say the interpreter of any text, as all texts are particular texts. See Paul F. Campos, This Is Not A Sentence, 73 WASH. U. L.Q. 971 (1995) [hereinafter Campos, Sentence].
42. VII JOHN MILTON, PARADISE LOST 177, lines 437-40 (Merritt Y. Hughes ed., 1962) (2d ed. 1674).
43. For the other usage, see id. Book V at 279.
44. In re Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989).
45. Not that a pragmatic approach necessarily will be hostile to such considerations. One always can choose to follow formal semantic rules or to interpret the authors' text for pragmatic reasons. See, e.g., RICHARD A. POSNER, OVERCOMING LAW 229-36 (1995).
46. "Legislative history offers wilful judges an opportunity to pose questions and devise answers, with predictable divergence in results." Sinclair, 870 F.2d at 1343. (emphasis added).
47. The quotation marks indicate that if by "interpretation" we mean the act of determining the semantic intentions of a text's author then the idea of a tautological "interpretation" becomes oxymoronic. See Campos, Sentence, supra note 34.
48. On this account of semantic meaning it is no coincidence that the word "meaning" functions as both a noun and a verb.
49. In re Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989) (citation omitted).
50. If what interests the interpreter is the meaning of the legislature's text, then anything that provides evidence of the legislature's semantic intentions qualifies as "legislative history."
51. See generally Knapp & Michaels, supra note 25.
52. United States v. Fisher, 6 U.S. (2 Cranch) 496 (1805).
53. A good introduction to the use of public choice theory in legal scholarship is DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991).
54. Of special interest in the context of the argument here is Frank Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4 (1984).
55. In re Sinclair. 870 F.2d 1340, 1343 (7th Cir. 1989).
56. See SAUL A. KRIPKE, WITTGENSTEIN ON RULES AND PRIVATE LANGUAGES 7-54 (1982).
57. The quotation marks that bracket these phrases indicate that the ontological status of the entities referred to by these phrases is itself a product of the beliefs of the subjects participating in the practice.
58. That is to say, if the interpreter misinterprets the meaning of the artifact, but the interpreter's misunderstanding becomes definitive of the artifact's meaning, then the interpreter's misinterpretation has generated a new artifact. See Steven Knapp & Walter Benn Michaels, A Reply to Our Critics, in AGAINST THEORY: LITERARY STUDIES AND THE NEW PRAGMATISM, supra note 25 (noting that William Blake's attribution of a new meaning to one of his own poems resulted in two different, verbally identical poems). Pierre Schlag points out that "[the Knapp and Michaels'] argument [has] a certain intellectually therapeutic effect, for it asks of anyone who claims to be practicing "interpretation" to come forward and disclose the animating source, the animating agency, the subject who produces the text's meaning."
59. Pierre Schlag, Without Authority, Beyond Interpretation, 96 COLUM. L. REV. (forthcoming 1996) (manuscript at 37, on file with author).
60. Sinclair, 870 F.2d at 1343.
61. The formula can be reinterpreted pragmatically as advocating something along the lines of "understanding the speaker to mean what most speakers would mean when using those words in circumstances substantially similar to those in which they were actually used."
62. To answer "because he is the judge" is to fall back on a trivially circular functionalism. See infra note 71 and accompanying text.
63. To mention just one, various versions of what William Eskridge calls "dynamic statutory interpretation" call for the development of a methodology that will attempt to synthesize all these factors as a matter of course. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987).
64. Compare Pierre Schlag's assertion that the issue in many a legal case cornes down to asking an impossible question: "Given something whose essence is to be two or more things at once, which one of the two or more things is it?" Pierre Schlag, Hiding the Ball, 71 N.Y.U. L. REV. (forthcoming 1996) (manuscript at 42, on file with author).
65. See JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY (1995).
66. See id. at 23-26.
67. See SEARLE, supra note 29, at 211-12.
68. SEARLE, supra note 56, at 27-57. A more extreme version of social construction theory would deny that there are any "brute facts." On this view, all "facts" are products of some socially contingent organization of the world into arbitrary categories. For the purposes of the argument here we need only admit that certain facts (the valid movement of the bishop) at least appear to be much more socially contingent than others (the chemical composition of a chess piece).
69. I ignore for the moment the natural lawyer's claim that certain sorts of legal facts are not socially constructed.
70. For an influential analysis of the distinction between interpreting a practice and interpreting particular acts within that practice, see John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3 (1955).
71. That is, the players treat the constitutive rules of the practice as something more than a merely contingent agreement about the matter (i.e., from the participants' perspective, the rules of the practice are treated as if they have a formal existence that transcends the contingent fact that, for example, these particular players just happen to treat the bishop in this way). Conversely, such conceptual agreement does not rule out the possibility of an empirical dispute about, say, which piece of wood in a particular chess set is actually the bishop.
72. That is, for each interpreter within C it is a fact that X or X-1 or X-2 and so on either is or is not Y in C, but within C as a whole it is also a fact that X, X-1 and so on, both are and are not Y, and the interpreters in C understand this to be the case. In other words, they acknowledge that the constitutive context of the activity as a whole includes a number of conceptually incommensurable constitutive contexts.
73. For a discussion of the uses and abuses of definitional stops, see H.L.A. Hart, Prolegomenon to the Principles of Punishment, in PHILOSOPHY OF PUNISHMENT 15, 18 (Robert M. Baird & Stuart E. Rosenbaum eds., 1988).
74. "Empty" when compared to the use of that response within a monistic discourse. By comparison, responding "that's not chess" to the claim that the rook moves diagonally is an example of the use of a valid tautology within the sort of discourse where such tautological responses can be employed properly.
75. This itself is a contingent social fact, of course. It would be possible to treat matters of aesthetic judgment with the same degree of rigid formalism we apply to certain rules of chess, and vice versa.
76. I use "chaotic" here in terms of its classical significations, without any intended allusion to its contemporary resonances; the chaos is Milton's, not Mandelbrot's.
77. By "constitutive" I mean to emphasize that the presence of these elements and this structure is integral to the identity of the practice.
78. I ignore the difficult question of whether there can ever be brute linguistic facts.
79. That is, the dispute is a product of ontological incoherence rather than of epistemological disagreement.
80. In the classical legal realist tradition this conflict is resolved in two ways: first, through reference to some purely functional meta-context that operates as a plural practice (that is to say, C is whatever this legal decisionmaker happens to say it is). Such a meta-context is, of course, wholly trivial as a matter of methodology - it does not tell the decisionmaker anything about how to determine the relevant institutional facts - as well as being fundamentally repugnant to the rhetorical structure of what all the participants are required to treat as a monistic practice. The legitimacy of this meta-context is then determined by reference to decisional criteria that are understood to be in some way external to the formal structure of the legal system, that is, by determining whether or not the decision reflects "good policy." A similar response to the covertly pluralistic nature of legal discourse has been elicited from a contemporary heir to the realist tradition: Teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical and political discourse in general (i.e., from policy analysis). . . . There is never a "correct legal solution" that is other than the correct ethical and political solution to that legal problem. Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 40, 47 (David Kairys ed., 1982).
81. One problem with the policy-politics move favored by realist and critical thinkers is that, given the state of contemporary political culture, much of the same critique that interprets law as a chaotic discourse can simply be replicated at the level of political discourse. See, e.g., UNGER, supra note 8, at 95 ("The characteristic predicament of the modern lawyer is to argue constantly about policy, as if rational choice among competing values were possible, yet to remain faithful to the idea that values are subjective and to the political doctrine of which that idea is a part."). For an example from the world of high political theory of these same contradictory beliefs in action, see Paul F. Campos, Secular Fundamentalism, 94 COLUM. L. REV. 1814, 1817-21 (1994).
82. The chaotic nature of legal discourse is thus, ironically enough, a product of the discourse's need to deny its own chaotic quality. This same need can also be understood as a key source of what Robert Cover identified as the "jurispathic" character of legal decisionmaking: faced with "the luxuriant growth of a hundred legal traditions, [judges] assert that this one is law and destroy or try to destroy all the rest." Robert Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 53 (1983).
83. Because of its relevance to Judge Easterbrook's claims, it is worth emphasizing that this is an impossible operation. It is impossible because texts do not have formal meanings for an interpreter to discover. See Campos Sentence, supra note 34.
84. One common source of confusion in both literary and legal discussions of "interpretation" is the failure to distinguish between descriptive and normative accounts of the various activities that go by that name. See Paul F. Campos, A Text Is Just A Text, 19 HARV. J.L. & PUB. POLY. 327, 329-30 (1996).
85. Let me again emphasize that this discursive typology simply does not apply to the interpretation of objective, "brute" facts - to facts that do not depend for their facticity on the beliefs of interpreting subjects. Thus the natural-law theorist who asserts that certain positive legal rights are given their status as legal rights by the fact that they are also metaphysically transcendent "natural rights" would deny that all legal facts are socially constructed.
86. This point might seem to be in some tension with my assertion that the interpretation of text is always the attempt to determine what its author meant by it. It isn't: the latter claim merely aims to clarify the status of certain linguistic activities and the artifacts they produce. It is not an attempt to regulate the use of the term "interpretation."
87. Compare Ronald Dworkin's well-known distinction between the "internal" and "external" perspective: People who have law make and debate claims about what law permits or forbids . . . . This crucial argumentative aspect of legal practice can be studied in two ways or from two points of view. One is the external point of view of the sociologist or historian . . . . The other is the internal point of view of those who make the claims. RONALD DWORKIN, LAW'S EMPIRE 13 (1986) (emphasis added). Dworkin's account emphasizes that, when it takes place from this internal perspective, legal argument never takes the form "my version of law is better (in the sense of more desirable) than your version." The argument, as both Dworkin's jurisprudence and Judge Easterbrook's opinion demonstrate with admirable clarity, is always framed as "my version of law is law and yours isn't." Note that from such an internal, monistic perspective, legal claims must always represent themselves as being of a descriptive rather than of a "merely" normative nature.
88. In re Sinclair, 870 F.2d 1340, 1343-44 (7th Cir. 1989).
89. Even a scholar as sensitive to the subjectivity and complexity of legal meaning as Jack Balkin has made this mistake: [T]he Rule of Law requires that a legal text be separated from the purpose present in the mind of the creator of the text . . . . Assume that the sole purpose of price control regulation is to benefit the airline industry. After intense lobbying, the legislators are convinced that they need to outlaw "cutthroat competition" among the airlines. Suppose that economic conditions then change, and the airlines will lose revenue unless they can increase volume by 'dropping their prices below the minimum price levels. We would not read the statute to mean that minimum prices no longer control, even though that would achieve the authors' purpose of benefiting the airline industry. Rather, we must admit that the text of the statute has taken on a life of its own, apart from the original purpose of the legislators who created it. J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743, 783 (1987). Professor Balkin has informed me that he now rejects the conflation of two different meanings of "intent" implicit in this passage. Telephone Interview with J.M. Balkin (Sept. 1995) (discussing Balkin's 1987 article).
90. See J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 4-24 (1962).
91. That is, they have generated a text.
92. Not that I want to make any sort of comparative historical claim on this score. Before lamenting the degenerate state of our present condition, we should remember that even in the nineteenth century the common law was sometimes referred to as "a chaos with an index."
93. Especially well-known examples of this phenomenon are provided by the decisions in the Weber and Li cases mentioned earlier. See supra note 7 and accompanying text. Grant Gilmore's description of the holding in Li is mostly, but not completely, accurate: The Court concluded that the California Civil Code of 1872 had adopted the common law contributory negligence rule . . . took note of the fact that the California legislature had refused to amend the Code provision and held that, despite the Code, California would now adopt a "comparative negligence" rule. GRANT GILMORE, THE AGES OF AMERICAN LAW 144 (1977) (emphasis added). The Court rather held that the Code also expressed the legislature's intent that the Code "be interpreted so as to give dynamic expression to the fundamental precepts which it summarizes." Li v. Yellow Cab Co. of Calif., 532 P.2d 1226, 1239 (Cal. 1975). The judicial discernment of this sort of "meta-interpretive" authorial intent is now routine. In many areas of constitutional law, to pick an obvious example, this distinction is familiar enough to have achieved the status of a platitude.
94. Perhaps Judge Easterbrook's example seems initially nonproblematic because it involves altering legislatively determined numbers. For some reason (maybe we are all at heart Pythagoreans when it comes to matters of mathematical representation) legal actors in our system remain squeamish about ignoring textual meaning when it is expressed numerically. This may also be why fancy arguments about the interpretive plausibility of twenty-fwe-year-old presidents, etc., always seem somewhat absurd, if not downright ridiculous.
95. In re Sinclair, 870 F.2d 1340, 1344-45 (7th Cir. 1989).
96. See supra note 15 and accompanying text.
97. WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 757-58 (2d ed. 1995).
98. Our ordinary parlance about such questions employs what George Lakoff and Mark Johnson have identified as a reifying "container schema." See, e.g., GEORGE LAKOFF, WOMEN, FIRE, AND DANGEROUS THINGS 271-73 (1987). The physical instantiation of a text does not literally "contain" any semantic content, of course. It is merely evidence of some particular mental state (the author's). See the work cited supra in note 25 for a full elaboration of this claim.
99. Which is to say interpreters can answer such constitutional questions by reading the Constitution's text. See Campos, Constitutional, supra note 25, at 305.
100. Readers of Jorge Luis Borges will note that the ideas of the total text and the empty text merge harmoniously in his Library of Babel, where an almost infinite collection of books contain every possible orthographic combination that can occur in a particular alphabet. As a formal matter, the comprehensive volumes of such a semantic monstrosity would appear to express everything that has been or could be said in any actual or possible language. Leafing through those volumes, an immortal reader would eventually discover that the library's texts seem to "affirm, negate and confuse everything like a delirious divinity [como una divinidad que delira]." Jorge Luis Borges, La Biblioteca de Babel, in FICCIONES 85, 93 (1956),
101. translated as The Library of Babel, in LABYRINTHS, supra note 1, at 51, 57.
102. Again, the claim here is that the interpretation of a text is always the act of determining what its author meant by it. The text's meaning is always already identical with the author's intentions precisely because it is those intentions that must determine the text's semantic identity. See supra note 25 and the literature cited therein for a fuller explanation of these claims. Nevertheless, the forms of semantic failure that strike the author's text can also plague the texts created by those acts of creative misinterpretation I elsewhere call "misreading" and "reauthoring." See Campos, Constitutional, supra note 25.
103. "To make into a pseudotext." This definition is, I hope, redundant. Its point is to note the parallel with the "mantling" example above. See supra notes 35 & 36 and accompanying text. Obviously we do not follow "the rules of language" in any useful sense when we interpret nonce words - from "once," not from "nonsense."
104. See supra note 87 and accompanying text.
105. Not that surreal, apparently; given the fractured quality of much contemporary professional discourse, the line between sincere argument and subversive parody becomes fuzzier all the time. See, e.g., the (in)famous recent performance of Professor Alan Sokal in Alan D. Sokal, Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity, SOCIAL TEXT, Spring/Summer 1996, at 217;
106. Alan Sokal, A Physicist Experiments with Cultured Studies, LINGUA FRANCA, May/June 1996, at 62.
107. See also Stanley Fish, Professor Sokal's Bad Joke, N.Y. TIMES, May 21, 1996, at A23.
108. "Attempted" because the interpretive question is not whether these authors managed to produce sufficiently meaningful texts, but whether they were able to generate, respectively, a statutory text and a judicial text.
109. Here the very structure of our language reflects the idea that a text's lack of authority and of an appropriate author are synonymous concepts.
110. However, "principle" is one thing, practice another. In other words, once you are stuck with an authorially deficient pseudotext you have to do something with it - perhaps even interpret it.
111. For some examples of misinterpretive textual strategies, see Campos, Constitutional, supra note 25.
112. JAMES JOYCE, ULYSSES 680 (1946).
113. This is not to say that litigants are always rational maximizers of something that can be monetized; that is, unless we understand some litigation as a type of consumption. See, e.g., Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). The litigants expended a small fortune in a dispute over a fox pelt, leading one observer to note that "the love of law suits had not entirely disappeared, although, as by this time lawyers were employed, they were much more in the nature of luxuries." JAMES T. ADAMS, MEMORIALS OF OLD BRIDGEHAMPTON 165 (1962).
114. Again, let me emphasize that I am purposely ignoring the whole question of epistemological disagreement. Disagreement about the semantic meaning of a text, per se, isn't relevant to the analysis of the chaotic features of a discourse. The question I am pursuing here is not the empirical question "what does this text mean?" but rather the conceptual question "what do we mean when we ask what a text means?"
115. This strategic imperative to deny the potentially pseudotextual nature of legal texts is a consequence of our system's metainterpretive assumption that the "relevant" legal materials always provide an answer to whatever interpretive question might arise. As A.W.B. Simpson points out, it just is not an option in the Anglo-American legal tradition for the judge to say to the parties "sorry, but there's no law here to decide your dispute. Everybody go home." A.W.B. Simpson, unpublished review of RONALD DWORKIN, LAW'S EMPRE (1986).
116. For the sake of simplicity of analysis I am assuming that no other dispute would have revealed the text's deficiencies.
117. See supra note 89 and accompanying text.
118. This essay makes no claim about the actual phenomenology of legal practice. While the rhetoric of our legal system requires that lawyers often engage in what is conceptually structured as a chaotic practice, this does not necessarily mean, of course, that all lawyers have in fact internalized that structure. In other words some lawyers and perhaps even a few judges may well understand the system's monistic claims to be rhetorical exaggerations or outright fictions.
119. Another way of putting this point is to say that arguments about the correct interpretation of particular legal texts regularly disguise conceptual disputes about what, as a general matter, it even means to "interpret" a legal "text." As Sinclair illustrates, putative arguments about the meaning of legal texts are often best understood as subtextual disagreements concerning the identity of the meaning-conferring agents who must give those texts whatever meaning it is claimed they possess.
120. Again, Judge Easterbrook avoids acknowledging this result through what is by his own methodological lights an obvious misinterpretation of section 256(1). See supra note 15 and accompanying text.
121. See supra note 48 and accompanying text.
122. After all, he could do so without even altering the case's result. A less imaginative judge of similar decisional inclinations would have dismissed the conference committee report with the perfectly true - and, from a methodological perspective, perfectly useless - interpretive insight that "the statutory text itself" is the best evidence of legislative intent. See, e.g., United States v. American Trucking Assns., 310 U.S. 534, 543 (1940) ("There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.").
123. "[M]odern writing at its worst does not consist in picking out words for the sake of their meaning . . . . It consists in gumming together long strips of words which have already been set in order by someone else, and making the results presentable by sheer humbug." George Orwell, Politics and the English Language, in 4 THE COLLECTED ESSAYS, JOURNALISM AND LETTERS OF GEORGE ORWELL, 127, 134 (Sonia Orwell & Ian Angus eds., 1968).
124. See generally JOSEPH VINING, THE AUTHORITATIVE AND THE AUTHORITARIAN (1986);
125. Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104 (1989).
126. See Joseph Raz, Authority, Law and Morality, 68 MONIST 295 (1985);
127. Larry Alexander, All or Nothing at All? The Intentions of Authorities and the Authority of Intentions, in LAW AND INTERPRETATION 357 (Andrei Marmor ed., 1995).
128. Pierre Schlag frames this possibility in characteristically stark terms: What we are in the midst of recognizing at present is not, as in the 1970's and 1980's, the disappearance of the disinterested neutral interpreter of law. What we are encountering now is the disappearance of something much more serious - much more serious because much harder to replace. What we are in the midst of recognizing now is that law may well be without authors or authors worth heeding. And without authors or without authors worth heeding, law may well turn out to be little more than a series of fragmentary aesthetic and normative operations that legal professionals project on canonical materials that are themselves largely bereft of meaning. SCHLAG, supra note 50, manuscript at 41.
129. Good examples of chaotic pseudotexts are provided by, on the one hand, the often incredibly complicated regulatory schemes that dominate the modern administrative state (for instance the Bureau of Indian Affairs' internal regulations run to 16,000 pages; apparently, only one complete copy of this textual Panopticon exists). On the other hand, the juridical saturation of modern life requires that legal actors "interpret" various venerable documents - texts whose original semantic contents were by comparison fairly modest or cryptic - "as if" the historical meaning of these documents provided answers to the most recondite of contemporary legal questions. See, for example, the interpretive legal traditions that have subsumed the original texts of such documents as the Securities Act of 1933, the Sherman Act, the Statute of Frauds, and most famously, the United States Constitution.
130. Law looks very monistic in a hornbook, less so when consulting an attorney, and even less so during a trial. As for appellate court opinions . . . res ipsa loquitur.
131. The double meaning is intended. No one asks "in practice" (in both the broadly pragmatic and the narrowly economic senses) if a twenty-five year-old can run for President - only "in theory," that is to say, in the scholastic setting of the classroom and the law review.
132. At a minimum the argument in this essay suggests that, in the context of non-frivolous appellate court litigation, the idea of an "easy case" is oxymoronic. See Paul F. Campos, Advocacy and Scholarship, 81 CAL L. REV. 817, 837-47 (1993).
133. For a contrary view see Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985).
134. We might generalize and say that when the legal system remains a mostly invisible set of background conditions it tends to function as a monistic system of meaning; when it is understood sociologically, it often resembles a plural system; and when it is formally invoked as a source of justification, it rapidly takes on the characteristics of a chaotic system. Respective examples: "that's my umbrella" (the social truth of such statements is so transparent that they are not usually understood as involving legal claims at all); "abortion is currently considered unconstitutional" (such statements implicitly invoke the contingent, pluralistic character of legal claims); "the Constitution protects abortion rights" (such statements disguise the chaotic structure of legal argument that renders them empty tautologies).
135. Recall Borges's vision of a total library, cited supra in note 90.
136. TASK FORCE ON NOMENCLATURE AND STATISTICS. AMERICAN PSYCHIATRIC ASSN., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 234 (3d ed. 1980). In the course of presenting this paper to various law faculties I have encountered two recurrent questions that, curiously enough, are often asked sequentially by the same interrogator. They are: (1) What are you telling us that we don't already know? and (2) Is this case correctly decided?