In Writing in Public, Trevor Ross repeatedly characterizes key phenomena—eighteenth-century conce... more 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 discours...
James Obergefell . . . asks [in this case] whether Ohio can erase his marriage to John Arthur for... more James Obergefell . . . asks [in this case] whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse . . . ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children. . . . Ijpe DeKoe and Thomas Kostura . . . ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage.1
Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpre... more Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did
Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpre... more Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.
Law. Thanks to Richard Delgado and Anders Walker for their helpful comments and suggestions, to E... more Law. Thanks to Richard Delgado and Anders Walker for their helpful comments and suggestions, to Erin McGowan for her invaluable research assistance, and to the editors of the McGeorge Law Review, especially Brian Hamilton and Leo Moniz, for their help in preparing this article for publication.
To decide many cases, courts need to characterize some of the legal rules involved, placing each ... more To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule's effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the reasons for the differences between the doctrines governing each type of characterization by contextualizing each as an example of the same activity: the identification of the "genre," or kind, to which particular legal texts belong. Showing that decisions in both areas do in fact involve genre classification, the Article explains how it follows that legal characterization is an aspect of legal interpretation, although courts have seldom recognized as much. This analysis further suggests new lines of development for both Erie doctrine and jurisdictional characterization. Judges making Erie decisions should characterize both the state and federal laws at issue according to their sources, as well as under the substantive-procedural rubric, and should recognize that the question of conflict, if reached, is akin to other questions of federal preemption. Judges making jurisdictional-characterization decisions should extend the existing doctrinal framework to take into account other consequences of characterization and to allow the analogous handling of federal rules. The U.S. Supreme Court already has most of the resources it needs to move down these paths. Still,
Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction... more Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the ‘legal f...
Much contemporary legal commentary contains nontextual information—everything from graphs and car... more Much contemporary legal commentary contains nontextual information—everything from graphs and cartoons to geometric diagrams of the relations among legal concepts. No comprehensive account of this practice exists, so that most of those participating in it today are unaware of the rich tradition from which it derives. This chapter explores that tradition, explaining the relations between visual legal commentary and a broader tradition of visual commentary, as well as the important relations between visual legal commentary and the historical consolidation of legal expertise.
Assessing a year's worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, thi... more 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.
To decide many cases, courts need to characterize some of the legal rules involved, placing each ... more To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule's effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the reasons for the differences between the doctrines governing each type of characterization by contextualizing each as an example of the same activity: the identification of the "genre," or kind, to which particular legal texts belong. Showing that decisions in both areas do in fact involve genre classification, the Article explains how it follows that legal characterization is an aspect of legal interpretation, although courts have seldom recognized as much. This analysis further suggests new lines of development for both Erie doctrine and jurisdictional characterization. Judges making Erie decisions should characterize both the state and federal laws at issue according to their sources, as well as under the substantive-procedural rubric, and should recognize that the question of conflict, if reached, is akin to other questions of federal preemption. Judges making jurisdictional-characterization decisions should extend the existing doctrinal framework to take into account other consequences of characterization and to allow the analogous handling of federal rules. The U.S. Supreme Court already has most of the resources it needs to move down these paths. Still,
Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction... more Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the 'legal fiction' label to signal those writers' sense of the futility of further justification to a non-legal audience (even when they are using the term in a justification likely to be read only by a legal audience); and, contrary to the assumptions of many post-Fuller theorists, that the boundaries of the legal vocabularies recognised as self-justifying may have become less distinct over the past century.
Current legal vocabularies are ill equipped to regulate the channels through which legal actors r... more Current legal vocabularies are ill equipped to regulate the channels through which legal actors receive and process much of the non-legal information they use. Sophisticated legal tools have been developed in only a single area: the screening of expert witness testimony. Disproportionate focus on this format is the best explanation for the Supreme Court's otherwise perplexing 2012 decision in Williams v. Illinois, which revealed deep disagreements among the Justices on a basic issue in hearsay analysis. Williams, this Article argues, is a sign of the much more pervasive analytical problems caused by treating all non-legal expert information as if it fit the model of a live witness's oral testimony. The Article maps these problems, revealing inexplicable inconsistencies in the legal treatment of non-legal information; it also outlines basic principles developed in other disciplines to study and explain the generation of specialized information and proposes modest, practical changes to the rules of evidence on judicial notice to address some of the most troubling problems. Above all, it argues that we need to discuss and develop doctrine concerning the textual presentation of information generated within specialist discourse communities. As long as this issue remains unaddressed, our law will lack any systematic account of one of its main channels of information reception.
Assessing a year's worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, thi... more 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.
In Writing in Public, Trevor Ross repeatedly characterizes key phenomena—eighteenth-century conce... more 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 discours...
James Obergefell . . . asks [in this case] whether Ohio can erase his marriage to John Arthur for... more James Obergefell . . . asks [in this case] whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse . . . ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children. . . . Ijpe DeKoe and Thomas Kostura . . . ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage.1
Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpre... more Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did
Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpre... more Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.
Law. Thanks to Richard Delgado and Anders Walker for their helpful comments and suggestions, to E... more Law. Thanks to Richard Delgado and Anders Walker for their helpful comments and suggestions, to Erin McGowan for her invaluable research assistance, and to the editors of the McGeorge Law Review, especially Brian Hamilton and Leo Moniz, for their help in preparing this article for publication.
To decide many cases, courts need to characterize some of the legal rules involved, placing each ... more To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule's effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the reasons for the differences between the doctrines governing each type of characterization by contextualizing each as an example of the same activity: the identification of the "genre," or kind, to which particular legal texts belong. Showing that decisions in both areas do in fact involve genre classification, the Article explains how it follows that legal characterization is an aspect of legal interpretation, although courts have seldom recognized as much. This analysis further suggests new lines of development for both Erie doctrine and jurisdictional characterization. Judges making Erie decisions should characterize both the state and federal laws at issue according to their sources, as well as under the substantive-procedural rubric, and should recognize that the question of conflict, if reached, is akin to other questions of federal preemption. Judges making jurisdictional-characterization decisions should extend the existing doctrinal framework to take into account other consequences of characterization and to allow the analogous handling of federal rules. The U.S. Supreme Court already has most of the resources it needs to move down these paths. Still,
Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction... more Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the ‘legal f...
Much contemporary legal commentary contains nontextual information—everything from graphs and car... more Much contemporary legal commentary contains nontextual information—everything from graphs and cartoons to geometric diagrams of the relations among legal concepts. No comprehensive account of this practice exists, so that most of those participating in it today are unaware of the rich tradition from which it derives. This chapter explores that tradition, explaining the relations between visual legal commentary and a broader tradition of visual commentary, as well as the important relations between visual legal commentary and the historical consolidation of legal expertise.
Assessing a year's worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, thi... more 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.
To decide many cases, courts need to characterize some of the legal rules involved, placing each ... more To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule's effect on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This Article offers the first systematic comparison of two important types of legal characterization: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. The Article explains the reasons for the differences between the doctrines governing each type of characterization by contextualizing each as an example of the same activity: the identification of the "genre," or kind, to which particular legal texts belong. Showing that decisions in both areas do in fact involve genre classification, the Article explains how it follows that legal characterization is an aspect of legal interpretation, although courts have seldom recognized as much. This analysis further suggests new lines of development for both Erie doctrine and jurisdictional characterization. Judges making Erie decisions should characterize both the state and federal laws at issue according to their sources, as well as under the substantive-procedural rubric, and should recognize that the question of conflict, if reached, is akin to other questions of federal preemption. Judges making jurisdictional-characterization decisions should extend the existing doctrinal framework to take into account other consequences of characterization and to allow the analogous handling of federal rules. The U.S. Supreme Court already has most of the resources it needs to move down these paths. Still,
Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction... more Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the 'legal fiction' label to signal those writers' sense of the futility of further justification to a non-legal audience (even when they are using the term in a justification likely to be read only by a legal audience); and, contrary to the assumptions of many post-Fuller theorists, that the boundaries of the legal vocabularies recognised as self-justifying may have become less distinct over the past century.
Current legal vocabularies are ill equipped to regulate the channels through which legal actors r... more Current legal vocabularies are ill equipped to regulate the channels through which legal actors receive and process much of the non-legal information they use. Sophisticated legal tools have been developed in only a single area: the screening of expert witness testimony. Disproportionate focus on this format is the best explanation for the Supreme Court's otherwise perplexing 2012 decision in Williams v. Illinois, which revealed deep disagreements among the Justices on a basic issue in hearsay analysis. Williams, this Article argues, is a sign of the much more pervasive analytical problems caused by treating all non-legal expert information as if it fit the model of a live witness's oral testimony. The Article maps these problems, revealing inexplicable inconsistencies in the legal treatment of non-legal information; it also outlines basic principles developed in other disciplines to study and explain the generation of specialized information and proposes modest, practical changes to the rules of evidence on judicial notice to address some of the most troubling problems. Above all, it argues that we need to discuss and develop doctrine concerning the textual presentation of information generated within specialist discourse communities. As long as this issue remains unaddressed, our law will lack any systematic account of one of its main channels of information reception.
Assessing a year's worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, thi... more 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.
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