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Interpreting Law and Literature - A Heremeneutic Reader and Doiung PDF
Interpreting Law and Literature - A Heremeneutic Reader and Doiung PDF
Volume 10
Article 10
Issue 2 Spring 1990
April 1990
Recommended Citation
James D. Hopkins, Interpreting Law and Literature: A Heremeneutic Reader and Doiung What Comes
Naturally: Change, Rhetoric, and the Practice of Theory in Literacy and Legal Studies, 10 Pace L. Rev.
427 (1990)
Available at: http://digitalcommons.pace.edu/plr/vol10/iss2/10
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Book Review
t Columbia College, 1931; Columbia Law School, 1933; Justice, Appellate Division
2d Dept., Supreme Court of New York, 1962-81.
1. INTERPRETING LAW AND LITERATURE: A HERMENEUTIc READER (Levinson and Mail-
loux ed. 1988) [hereinafter INTERPRETING LAW AND LITERATURE]. Sanford Levinson is the
Charles T. McCormick Professor of Law at the University of Texas; Steven Mailloux is
Professor of English at Syracuse University.
2. S. FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF
THEORY IN LITERARY AND LEGAL STUDIES (1989) [hereinafter DOING WHAT COMES NATU-
RALLY]. Stanley Fish is Arts and Sciences Professor of English, and Professor of Law at
Duke University.
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7. E.D. HIRSCH, JR., THE AIMS OF INTERPRETATION 19-20 (1972). The author is the
William R. Kenan Professor of English at the University of Virginia.
8. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). See also J.S. DYE, HISTORY'
OF THE PLOTS AND CRIMES OF THE GREAT CONSPIRACY TO OVERTHROW LIBERTY IN AMERICA
(1866) (detailing the events in the bloody battlefields of the American Civil War from
1861 to 1865).
9. This distinction between textualists and contextualists, along with other modified
versions of both approaches, is drawn by Brest, The Mission and Quest for the Original
Understanding, in INTERPRETING LAW AND LITERATURE, supra note 1, at 70-71, 80-84.
Paul Brest is Dean of the Stanford Law School.
10. INTERPRETING LAW AND LITERATURE, supra note 1, at x.
11. Id.
12. INTERPRETING LAW AND LITERATURE, supra note 1, at xi.
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uable aid which his notes bear to the meaning of the language.
That view becomes somewhat dimmed when one reads that
Madison thought that "the debates and incidental decisions of
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the Convention can have no authoritative character.
The split reflected by these outlooks has progressed to seri-
ous proportions in recent years, especially in the consideration
of the Constitution. The senatorial hearing held on the appoint-
ment of Judge Bork is the most striking illustration. Bork was
questioned closely concerning his beliefs, shown both by his ju-
dicial opinions, and by his philosophy as displayed in his law
review articles. 1
How should we interpret our Constitution? As might be ex-
pected, Justice William J. Brennan, Jr. and former Attorney
General Edwin Meese III have different standards. Justice Bren-
nan looks at the constitutional language "with full consciousness
that it [is] . . . the community's interpretation that is sought."22
Thus, he would engraft on the language the historical and cul-
tural background formed between the framing of the Constitu-
tion until the day of decision in a particular case. Meese, on the
other hand, argues that the interpretation depends on the mean-
ing which the authors had in mind in choosing the language,23 a
view, which though rooted in the text, is not as absolutely liter-
alist as that held by commentator Max Radin, who contended
that even intention should not enter into interpretation, but
only the naked text.2 4
The problems are better defined through example. The
Constitution provides that no person shall be eligible for the of-
fice of President who shall not have attained the age of thirty-
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33. Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934); see also Cabell v.
Markham, 148 F.2d 737, 739 (2d Cir. 1945).
34. Hirsch, Counterfactuals in Interpreting,in INTERPRETING LAW AND LITERATURE,
supra note 1, at 55, 56.
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41. S.FISH, Consequences, in DOING WHAT COMES NATURALLY, supra note 2, at 315,
317.
42. Karl Llewellyn is the noted author of numerous books and law review articles,
and chief reporter of the Uniform Commercial Code.
43. Llewellyn, Remarks on the Theory of Appellate Decision and Rules or Canons
About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401-06 (1950). A broad
canvass of the canons is contained in N.Y. STATUTES LAW ch. 6 (McKinney 1971 and
Supp. 1990); see also SUTHERLAND, STATUTORY CONSTRUCTION chs. 55, 61 (4th ed. 1986).
44. 74 N.Y.2d 201, 543 N.E.2d 49, 544 N.Y.S.2d 784 (1989).
45. Id. The regulation in question provided that the landlord on the death of the
tenant may not dispossess either the surviving spouse of the tenant or a member of the
deceased tenant's family living with the tenant. Id. at 206, 543 N.E.2d at 50, 544
N.Y.S.2d at 785.
46. Id. at 211, 219, 543 N.E.2d at 54, 59, 544 N.Y.S.2d at 789, 794.
47. Id. at 211, 218, 543 N.E.2d at 54, 58, 544 N.Y.S.2d at 789, 793.
48. Id. at 214, 223, 543 N.E.2d at 55, 61, 544 N.Y.S.2d at 790, 796.
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