Fictions of Omniscience

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, understood to underpin many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a new way to understand them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines regarding how we use and respond to statements about fictional states of affairs. The comparisons indicate that judges’ imputations of unrealistic knowledge to legislatures are best seen not as unfair demands, but as important parts of the story judges typically tell about the law in our legal system, according to which the legislature and judiciary play complementary roles in pursuit of compatible goals. Rather than impairments of judicial legitimacy, these imputations are descriptions of the necessarily aspirational grounds of legal legitimacy

Iqbal and Interpretation

Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision’s constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers about Iqbal is its suggestion that district court judges must interpret a civil complaint in order to decide whether it states a claim. As this Article explains, however, pleading scrutiny always has involved interpretation; if we find that suggestion troubling, it is only because the vocabulary we have long used to discuss the role and treatment of civil pleadings represses this fact. The Article describes the ways this vocabulary has shaped the debate over Iqbal and the contingent historical reasons for its dominance. Looking forward, it shows how Iqbal makes possible a new agenda for procedural scholarship that draws from work on other types of legal interpretation, and it suggests some of the specific ways in which this perspective can guide implementation of Iqbal and clarification of its requirements

Fictions of Omniscience

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, thought to underlie many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a different way of understanding them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines on the use and comprehension of statements about fictional situations. The comparisons suggest that, although judges impute unrealistic knowledge to legislatures, that imputation need not be characterized as an unrealistic demand or a naive simplification of reality. Rather, the imputation is an important part of the account judges in our legal system typically give of legislative power. According to that account, the legislature, responsible for uttering the law, must have at least as much awareness of the law\u27s content as the judiciary does. Whether such awareness is possible is beside the point. Rather than impairments of judicial legitimacy, judicial imputations of omniscience to the legislature are descriptions of the necessarily aspirational grounds of legal legitimacy

Does It Matter What We Say About Legal Interpretation?

Despite a common interest in justifying their scholarly output, legal academics have resisted seeing how their work is molded by the institutional environment in which it is produced, and not just by legal doctrine, ideology, or individual perspectives. This paper presents a case study from this neglected perspective, considering the shape of scholarship on legal interpretation in light of the social conditions of its production. After a brief discussion of the debates over whether scholarship (and which scholarship) matters, the paper explores how such concerns are addressed in various academic accounts of scholars’ textual practices. It then offers some initial conclusions from an original study of the 154 most-cited articles on legal interpretation published in American law reviews. Early framings of the subject shaped later work in familiar ways. But the patterns disclosed by the citation relationships among the articles suggest some surprising conclusions. Scholars working in the area seem to understand their contributions in a way that is at odds with the institutional dynamics of their efforts. These patterns further indicate that legal academics’ failure to develop a specifically legal scholarly discourse, in some respects a strength of legal scholarship, may carry seldom-noted risks in work on this topic

The Rhetoric of Symmetry

References to the concept of symmetry have appeared in judicial opinions, advocacy efforts, and scholarly commentary throughout American legal history. But for every legal writer who invokes the concept as a logical or moral ideal, there is another who dismisses it as a formalistic distraction or an arid illusion. What is more, although legal writers virtually always use the term “symmetry” as if its meaning were self-evident, in fact they have used the same term to refer to a variety of distinct concepts, each with its own ambiguities

The Elusive Public, Then and Now

In Writing in Public, Trevor Ross repeatedly characterizes key phenomena—eighteenth-century concepts of the public, literature, and the legal treatment of these and related issues—as elusive. He does so using a small set of associated adjectives: “incoherent,” “indeterminate,” and “ambiguous,” among others. This essay explores how Ross’s practice in this regard might be linked to his historical focus, first by cataloging Ross’s approaches to elusiveness and unfolding some of the implications of his attributions. On some topics, such as the orientation of members of the eighteenth-century public toward other members of that public, Ross’s accounts of indeterminacy are especially sensitive and persuasive. But his accounts of experiencing various kinds of elusiveness remain relatively fragmentary. Curiously, Ross attributes little significance to eighteenth-century readers’ exposure to and processing of explicitly fictional narrative. Consideration of the dynamics of fictional discourse suggests a further way to conceptualize some of the forms of elusiveness Ross identifies, as well as, perhaps, a way to explain their proliferation, their variety, and the roots of Ross’s approach to them. The essay proposes, ultimately, that Ross’s approach to elusiveness might be more a symptom of his own historical moment than a feature of his subject matter

Does It Matter What We Say About Legal Interpretation?

Despite a common interest in justifying their scholarly output, legal academics have resisted seeing how their work is molded by the institutional environment in which it is produced, and not just by legal doctrine, ideology, or individual perspectives. This paper presents a case study from this neglected perspective, considering the shape of scholarship on legal interpretation in light of the social conditions of its production. After a brief discussion of the debates over whether scholarship (and which scholarship) matters, the paper explores how such concerns are addressed in various academic accounts of scholars’ textual practices. It then offers some initial conclusions from an original study of the 154 most-cited articles on legal interpretation published in American law reviews. Early framings of the subject shaped later work in familiar ways. But the patterns disclosed by the citation relationships among the articles suggest some surprising conclusions. Scholars working in the area seem to understand their contributions in a way that is at odds with the institutional dynamics of their efforts. These patterns further indicate that legal academics’ failure to develop a specifically legal scholarly discourse, in some respects a strength of legal scholarship, may carry seldom-noted risks in work on this topic