Law in Contemporary Society
Here are some internal notes on my first paper. Some are transcribed from my handwritten notes, while some are just off the top of my head. Think of it as director's commentary. It will probably be added to as time goes on.

Also, this is a bit stream of consciousness. Take everything with a grain of salt, and feel free to disagree with anything.

"Interrogating the Text from the Wrong Perspective"
I predict that this will be first thing that EbenMoglen will say I should take out. And I probably will. The thing is, I just love the phrase too much. It's origin just too perfectly encapsulates everything that I find wrong with the idea of authorial intent.

To everybody reading this, I encourage you to search for the phrase and discover its history yourself. Or just click here.

Outline as Headings
I'm not a huge fan of using the outline as headings within the essay. I'm not a huge proponent of headings in a writing to begin with, and for a 1000-word essay I feel that they just add clutter. The essay should flow naturally without having to loudly declare its intentions every one or two paragraphs. I would prefer to remove these, and likely will in the first revision.

I'm aware that this is the giant elephant in the room. The thing is, I don't see this essay as involving textualism in the slightest. This is an essay about using the ideas in Barthes's "Death of the Author" in legal interpretation. Textualism has already accepted the idea of a dead author. In fact, I would argue that textualism doesn't believe in interpretation of any kind, but that's a topic for another essay.

The point of the essay is to explain both the undesirability and impossibility of using authorial intent in statutory interpretation (noting along the way that we already do this in common law interpretation). That does not mean we must be textualists. Indeed, I think textualism is f***ing insane sometimes (cf King v. Burwell).

Literary vs. Legal
I concede that it's sort of weird to use an essay on literary criticism to understand legal interpretation. But I don't think that understanding legal texts is all that different from understanding literary ones. The core idea in both settings is looking past the mere words to the underlying ideas expressed or implied in the document. In that context, using ideas from literary theory to interpret law makes perfect sense to me.

Weren't you a math major?
Yes. But, as much as I'd like it to be, law is not math. In math, everything is perfectly clear and logical all the time (well, most of the time; Banach-Tarski is still kinda weird). But law deals with language, which most of the time is incapable of the level of logic and precision that math regularly uses. This is not to say that I think law should strive to emulate mathematics; language is capable of infinite subtlety that math often is not. And people wouldn't really accept a mathematical law anyway; we want intangibles to matter.

I debated talking a bit about Arrow's Impossibility Theorem when discussing group intent. The thing is, I don't think it's necessary, and would just unnecessarily add complication to the core idea. Everybody intuitively understands that 100 people voting for X will likely have different ideas about X, and that it's meaningless to derive some idea about a "group intent regarding X" from that vote. This is the fundamental idea expressed by Schumpeter in explaining why he thinks Rousseau was wrong, and made mathematically sound by Arrow in the theorem.

As a sidenote, I used to joke in grad school that Arrow is one of the few people who managed to both create and destroy an entire subfield of study in a single paper. This is probably too unkind to social choice theory, but I think it has just a whiff of truth.

A Puzzle
Imagine you're looking through some old library books when you find a forgotten law in the code of the state of New York. The law, as far as you can tell, is still in force (it has never been repealed nor ruled invalid), although nobody seems to know about it. Being a good lawyer/law student, you believe that laws should not be ignored, so you bring it to the attention of the NY Court of Appeals. The law reads as follows:

"All computers in the state of New York must be paid a minimum of $2 per day of work."

How should the court interpret this law?

-- LukeReilly - 13 Mar 2015



Webs Webs

r2 - 30 Jun 2015 - 14:19:28 - MarkDrake
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