Academic

LL&B: the first day

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

My new class Law, Literature, and Business met for the first time yesterday. We read Stanley Fish?s The Law Wishes to Have a Formal Existence and Sandy Levinson?s Law as Literature. For those of you unfamiliar with these works, Levinson compares two ways of viewing the Constitution: either as a code to be cracked (which presumes there?s a right answer) or a more world-wise view, that each reader constructs his or her own interpretation, creating the text as much as reading it.

Fish, with dazzling rhetorical flair, uses contract law (not constitutional law! Hooray!) chestnuts to make the point that language is never plain and unambiguous. That all law, even garden-variety law, is a construct that, if you push it just a little, crumbles. For example, with consideration, Fish argues that it purports to create some sort of line between the kinds of contracts that we will enforce (bargained-for exchanges) and the ones we won?t (gifts). But then doctrines like duress, unconscionability, and contracts implied-in-fact let all the messy stuff back in. Law is contradictory and messy, but it has to deny that it is in order to speak with authority? that is, in order to be law. Lawyers make arguments and judges craft opinions knowing that the mere existence of a dispute means there are probably two plausible versions of the story, but ?the law? will pretend that one is obviously right.

The question that?s been nagging at me is the takeaway for a transactional lawyer. If language is inherently ambiguous, and readers bring a multiplicity of readings to the text, what?s a contract lawyer to do? Is she trying, along with her counterpart on the other side, to create a contract that has a single, unambiguous meaning? That is, are they ?code-writers? in the Levinson sense? Or are they instead really pre-interpreters, drafting with an eye to a hostile, eagle-eyed judge, ready to rule against them on any one of many possible issues? If this is the case, then each side is trying to seed the contract with the tools to win if things turn sour. Or do they, like constitutional interpreters, use different approaches at different times and for different purposes?

Full post as published by Conglomerate on August 20, 2008 (boomark / email).