Fine so long as you don't mean it. Neither the "authorial intent" nor "no fixed meaning" approach can possibly represent "reading the common law" in any of the various ways it has been done over the last 800 years. Cases have "meant" different things at different times, but they have never meant either today's judge's story about what they meant or what the judge who wrote them, speaking in many contexts for multiple judges, "intended" them to mean.

Crucially, nobody bats an eye during this whole process. It is completely normal to everybody in law. Nobody criticizes judges for failing to contact authors of prior decisions or lambasts them for interrogating the text from the wrong perspective. Everybody involved accepts that judges will treat prior decisions as they understand them.

No, for the most part they will treat prior decisions as the courts above them understand them.

There are plenty of arguments as to why one interpretation is better or more consistent or more economically sound than another, but the core idea that judges interpret prior decisions is assumed.

But often, despite your too-flat denial, after discussing cases with the judges who decided them. Not all cases are decided by dead judges, and over the course of the history of what you are calling "the common law," most of the cases that count were decided by members of a small fraternity, in constant touch with one another. Even or most especially, when they disagree.

In short, the legal field's approach to the common law has already internalized a dead author.

Only in short. Once you give something other than a truncated account, the resulting complexity deprives this point of its apparent force.

You might find useful Moglen & Pierce Sunstein's New Canons: Choosing the Fictions of Statutory Interpretation (1990).

At any rate, I do, still. "Legislative intent" is not a psychological concept. Congress doesn't possess legislative intent, it performs it. Trying to prohibit a legal concept from working because its premises are fictional is not the same as requiring compliance with the second law of thermodynamics.

So in my view the draft embodies a category error. I don't think the representation of common law judicial process is historically sound or conceptually complete, for the reasons already stated. I think that position was dictated by a need for symmetry more than it grew organically from the material. But the larger systematic concept being confirmed by the Procrustean truncation doesn't serve well at the other place of attachment either, because the imputation of "legislative intent" doesn't require that Congress have a mind, only that it make a record.

"If so, is there an alternative way to find the constitutional support for many of the rights we as a society consider fundamental today even though they do not appear in the text?"

I think a judge can justify many of the rights we have without resorting to legislative intent -- the framers of the 14th amendment likely didn't intend that the equal protection clause would preclude school segregation (granted, that's not statutory -- but my point is that I think you can reconcile our modern conceptions of rights with the idea that we should cease searching for and considering author's intent, even if those rights aren't explicit in the text).

Having said that, I would agree with Shay that there's something undemocratic about having 5 lawyers usurp the legislature's (likely) "intentions" and the executive's administration of a law. Otherwise, you get 5 lawyers denying millions health coverage due to a poorly worded statute. I guess on the flipside, one can still uphold the ACA as it has been administered without resorting to legislative intent/context -- if you're good enough, I'd say any logical argument can be utilized to justify any political disposition. As such, it's all just word play, and legislative intent is yet another tool in the tool box to justify a political leaning either way. But it's not necessarily an indispensable tool.

In short, I don't really think it will make a difference either way.

-- AlexWeiss - 06 Apr 2015

Building off what others have said, the one point I'm stuck on the fact that, despite what Judge Day would say, there really is no neutrality when a judge interprets case law. Just as a judge looking at statutory text might go to legislative history, a judge trying to interpret the applicability of case law to a given set of facts will inquire into the normative policy motivations of the cases and then figure out what matches her own motivations. A more practical note, how do you see this theory playing out in constitutional interpretation? This has the feeling of more of a Scala-like approach to statutory interpretation regime. If so, is there an alternative way to find the constitutional support for many of the rights we as a society consider fundamental today even though they do not appear in the text?

-- NicoGurian - 03 Apr 2015

Sorry if I'm antagonistic (not my intention), but I had another thought on this essay: how would you respond to the criticism that this interpretation of laws is undemocratic? Legislative intent strikes me as a powerful check on judges to ensure that judicial interpretation is in line with the will of the people. What if Planned Parenthood spent millions of dollars pushing a bill through Congress intending to protect some aspect of woman's privacy, and that statute went to the Supreme Court? Are you sure you're okay with five conservative lawyers telling them their interpretation was wrong? I'm not sure I am.

I suppose in the end it all goes back to that ancient debate between Plato and Aristotle. Who do you trust more: philosopher-kings or politicians?

-- ShayBanerjee - 29 Mar 2015

Building on Shay and Henry, how do you contend with the differences between common law and statutes regarding (for starters) their historical geneses and present modes of enactment?

-- MattBurke - 29 Mar 2015

I like your application of reader-response theory (or something like it) to judging and statutory interpretation, but I'm not sure I agree with some of your claims. First, do judges really let authorship die when they interpret opinions? Don't they often (sometimes overtly) consider the historical context and intentions of the author? Otherwise, if there is no platonic correctness, what is a judge's "understanding" of an opinion besides what she thinks the law should be? Second, doesn't your argument that we can't rely on legislators to express their unconscious intent lead to the (ironic) conclusion that we shouldn't trust them to distinguish their "holding" (the text of the statute) from their "dicta" (legislative history) either? If majority opinions of judges are subject to the same issues of individual intents, unconscious intents, etc., would you prefer that judges just give us an order or outcome without the discursive rationalizations (distinctions between carrots and potatoes) that follow?

-- HenryRoss - 28 Mar 2015

Interesting thoughts. I read Barthes as focusing on a sort of moment of transformation between the "before and after." The author operates on reality and "dies" in the sense that the rendering of symbol creates meaning unrelated to its origin.

With laws, however, it seems there are actually two moments of transformation. The first is what Barthes discusses - the moment at which symbols are rendered - where the lawmaker physically writes the statute or amends it. But isn't there also a second moment - when the statute actually becomes law (in America, when the executive signs it)? To me this second moment is critical, because, unlike other forms, when writing becomes law, it begins to coercively alter people's behavior. So while I'm okay with judges deriving their own subjective meaning from reading "Moby Dick," (because it does not affect me) I think the critical aspect of coercion means that judges should respect the interpretations of others when reading laws (and legislative intent might be one such element).

-- ShayBanerjee - 13 Mar 2015

Death of the Legislative Author

-- By LukeReilly - 13 Mar 2015

In his 1968 essay “Death of the Author,” Roland Barthes asked what meaning readers should be searching for in literary texts. His idea was that the literary field's obsession with trying to understand what authors meant to convey with works was fundamentally flawed. The author's interpretation of a text should not be presumptively valid merely because she is the author. Rather, the text was given no fixed meaning by the author, and should be treated accordingly.

The Author in Common Law

If this idea sounds strange, consider how the legal community treats the common law. When a judge discusses a prior case in a decision, she rarely attempts to understand authorial intent. The judge does not call up the author and ask them which cases they considered, whether a particular passage was holding or dicta, or why one set of facts was found analogous to another. Instead, she reads the prior decision and explains her understanding of it. At the same time, other judges read the same decision, interpret it differently, and a discussion ensues. These arguments and their resolution are then enshrined in a new decision which future judges will read and interpret.

Crucially, nobody bats an eye during this whole process. It is completely normal to everybody in law. Nobody criticizes judges for failing to contact authors of prior decisions or lambasts them for interrogating the text from the wrong perspective. Everybody involved accepts that judges will treat prior decisions as they understand them. There are plenty of arguments as to why one interpretation is better or more consistent or more economically sound than another, but the core idea that judges interpret prior decisions is assumed. In short, the legal field's approach to the common law has already internalized a dead author.

But as soon as we begin the process of statutory interpretation, this consensus falls apart. Instead, judges are urged to ascertain the intent of the legislature, and interpret the statute in such a way as to fulfill that intent. This is a fundamentally flawed idea, one undesirable in concept and impossible in execution.

The Author in Statutory Interpretation

Closing off of Discussion

As Barthes points out, attempts to identify a true intent on the part of an author have the effect of closing off debate, of “impos[ing] a limit on that text, to furnish it with a final signified, to close the writing.” It is tempting to believe that law should have such a definitive meaning, that a statute should try to embody a single fixed idea. In practice though, this will not and cannot happen. Laws are interpreted and executed by different bodies, with different understandings just of common English words, let alone legal ideas. When the administrative bodies of two states carry out a federal mandate differently, both believe they are fulfilling the law as they understand it. It would be difficult to say that either is correct in some cosmic sense, as after all law does not exist in a Platonic universal sense. Law, as we are reminded constantly, is made and enforced by people, and people's interpretations change based on circumstances. Insisting on a single intent granted from on high by a legislature curtails these natural and inevitable variations.

Impossibility of Combining Individual Intentions

Even if one were to accept the desirability of having a single, unified legislative intent, one immediately encounters the complete impossibility of determining such an intent in the first place. Every statute in the United States is passed by a legislature comprising many members; federal statutes must gain the approval of at least two hundred sixty-nine Congresspeople. Even if the intent of every single one of those people regarding the statute was well defined, which is almost certainly is not, there is no coherent way to combine those into one single unified group intent.

The Unconscious Intent

And even if the judge could ask each relevant legislator about their intent, there is no reason to trust the responses, as the legislators likely do not fully understand their intent themselves. Texts, as Barthes notes, are drawn from a multitude of different prior writings, cultures, and expressions which enter the writer, mixing together to form a new thing: “...a writer can only imitate a gesture that is always anterior, never original.” It is quite reasonable to expect that the legislator's conscious or expressed intent in passing a law is different from their actual intent, known deep down only to them.

How to Treat Statutes

The question that arises is this: if we do not believe that judges should treat legislative intent as presumptively valid, how should they interpret statutes? The answer lies in the other area of authority with which we are already intimately familiar: case law. Judges are perfectly capable human beings who have read hundreds, if not thousands, of statutes in their professional lives. They understand law, and know how it is supposed to function. We trust them to interpret case law and use it in current decisions; we should trust them similarly with statutory language. Judges can read a statute, assess what it means, and treat statutory language in light of their interpretations.

Let the importance of statutory authorship die much as common law authorship has. We are all taught that the judiciary exists to interpret the law. Let them actually interpret it.

Suggested Reading:

Roland Barthes - Death of the Author (PDF link)

Quotes on the concept of Death of the Author

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