The chaotic pseudotext.

• Date: 01 June 1996
• Author: Campos, Paul F.

The universe -- which others call the classroom -- consists of nine tables of semicircular wood, each of which provides a dozen seats whereon the students may sit. Before the tables, elevated and exposed, the gatekeeper of the law grasps both sides of a narrow lectern. His place of honor, his formal dress, the mound of mysterious texts that rise from the lectern -- all these signs mark him as a man of arcane knowledge, of special wisdom. And so he is believed to be: for the texts he wields with such apparent confidence are thought to contain nothing less than the law itself. Students who strive to gain admittance to the law must answer whatever questions he should choose to ask. The gatekeeper leads them through logical conundrums and verbal mazes: precedent moves this way, policy that; the words of the law are ambiguous, their counsels obscure. Yet one question reverberates repeatedly to every corner of the classroom: Is this case correctly decided? The students hesitate, stumble, prevaricate. "On the one hand ...." The gatekeeper favors them with an indulgent smile. Yet beneath that smile, beneath that confident manner, a remorseful conscience, agenbite of inwit, eats away at his soul. For in all truth, the gatekeeper has come to know that he does not even understand his own question.

I

The greatest of sorcerers would be the one who would cast a spell on himself to the degree of taking his own phantasmorgia for autonomous apparitions. Might that not be our case?(1)

The first glimmer of the ideas that would eventually animate this essay came to its author while eating lunch in a law school faculty lounge. In his forthcoming book Laying Down The Law, Pierre Schlag notes that the faculty lounge is the sort of informal social space that often provides an excellent opportunity to get a glimpse of what law professors really believe.(2) Here various jurisprudential, political, and pedagogic commitments can be aired in a forum devoid of the pressures of semi-public performance imposed by the lecture hall and the law review. Such was the case on this particular day. A dismal November drizzle was pelting the windows, and the conversation had turned to poor classroom performance. Complaints were aired about lack of preparation and about upper-level students who were unable to parse a case or read a statute. What was the teaching of law coming to? Finally I added my voice to the occasion's choleric tone. How, I asked, was one supposed to teach students to "interpret" the "law" when the relevant materials seemed to be in such complete disagreement as to what that verb and noun might signify? It wasn't merely a matter of a lack of agreement about what the evidence indicated: so many legal disputes appeared to turn on fundamental disagreements about what this "evidence" was supposed to be evidence of. The basic pedagogical problem, it seemed to me, did not so much involve the practical difficulties of interpreting the content of law, but rather of conveying to students the deep theoretical difficulties inherent in a system of meaning that featured conflicting and incorrigible conceptual assumptions about the nature of "legal interpretation," and hence about the very identity of the objects being interpreted.

I would have gone on, but Professor X began to shake his head. All at once a respectful hush fell over the lounge. A true legend of the law, Professor X had, nearly sixty years earlier, clerked for the even more legendary Learned Hand; he had subsequently rubbed shoulders with several Presidents, been Solicitor General of the United States, and taught at the Harvard Law School for the better part of five decades. Age could not wither him, nor could custom stale his appetite for the elegant complexities of legal argument. His back still ramrod straight, his voice still crisp as the freshly starched bow tie that adorned his collar, he began to favor us with the wisdom of his experience.

"We have always understood that any truly interesting legal question lends itself to a number of what seem plausible enough answers. All of us" -- here he made an ecumenical gesture -- "appreciate the real intellectual and practical difficulties presented by such situations. That is why I have always believed that no quality of mind is more important to both the practice and the teaching of law than good judgment."

With this he fell silent and turned again to his tomato soup. At that moment I began to suspect that, whatever "good judgment" was, I probably lacked it and seemed unlikely to acquire any.

This article is, in part, an attempt to explore what happens when the invocation of "good judgment" no longer seems adequate to meet the problems contemporary legal interpretation engenders. My particular focus is on the ontology of legal texts and the various practices called "legal interpretation," rather than on the epistemological questions that have traditionally dominated discussions, both in the classroom and in the scholarly literature, of those texts and those practices. More specifically, this piece is structured as a performative critique of the case method of legal education, especially with respect to that method's potential for exploring some relatively neglected questions regarding the nature of contemporary legal discourse, and of legal texts. Indeed, if we consider the traditional structure of American legal education, we will be struck by the ironic resonance of H.L.A. Hart's observation that

[f]ew questions concerning human society have been asked with such

persistence . . . as the question 'What is law?' Even if we confine our

attention to the legal theory of the last 150 years and neglect classical and

medieval speculation about the 'nature' of law, we shall find a situation not

paralleled in any other subject systematically studied as a separate

academic discipline. No vast literature is dedicated to answering the

questions 'What is chemistry' or 'What is medicine?', as it is to the question

`What is law?' A few lines on the opening page of an elementary textbook

is all that the student of these sciences is asked to consider; and the

answers he is given are of a very different kind from those tendered to the

student of law.(3)

Upon reflection, what is striking is how comparatively little salience this quote has to the ordinary work of the modern American law school. In particular, we might note the almost complete absence of questions regarding legal ontology from the pages of that standard text -- the casebook -- which is universally employed to introduce American law students to their subject, and which plays such a crucial role in the formation of their professional identities. Such questions, when they occur at all, are almost always exiled to what in most law schools are considered the exotic marginalia of the curriculum: a course on jurisprudence or a seminar on "legal philosophy."(4)

As the centerpiece of the Socratic method of teaching, the case method lends itself not to the question "What is law?" but rather to the query "What is the content of the law concerning x?" In other words, the case method's focus has been explicitly epistemological, rather than ontological.(5) Casebooks present students with materials, mainly appellate court opinions and the purportedly canonical legal texts (statutes, constitutions, other case holdings) those opinions deploy, and these same students then hear in the classroom that these artifacts contain -- that indeed in some unelaborated way these texts are -- "the law." For the harried student, the nature of these legal materials with which she must grapple is rarely if ever brought into question. Thus, these materials remain in some precritical sense "the law" from which students must somehow extract a recalcitrant meaning.

Now certain institutional imperatives may well make this situation necessary, even desirable. Legal academics are, as is often pointed out, in the business of training lawyers, not legal philosophers.(6) But even from the most practical standpoint, an exclusive focus on the supposed content of law at the expense of any inquiry into law's nature can produce dubious educational results. Consider the following passage from what, in my view, is the best casebook available in the field of legislation. The authors are in the process of summarizing various theories of statutory interpretation and have just introduced the student to their own theory of "dynamic" or "evolutive" reading.

Consider these different theories in the context of the following two cases.

Li [v. Yellow Cab Co. of Calif]is a case, like [United Steelworkers of

America v.]

Weber . . . where the Court refused to enforce the (probable) original

meaning of an old statute. Shine [v. Shine] is a case where the court

disregarded the apparent meaning of a new statute. How would Dworkin

decide these cases? We think they're both correctly decided. Are we

crazy?(7)

Although one can only admire the authors' willingness to pose such a provocative question, I must admit I encounter a great deal of pedagogic difficulty when discussing both this passage and the referenced materials with the students in my legislation class. Perhaps unfortunately, both they and their teacher have by this point in our respective legal educations only a vague idea of what it even means, at the most basic conceptual level, to ask if a case is "correctly decided." Are we crazy?

This article tries to get away from the traditionally epistemological (and instrumental, and normative) focus of the case method. In what follows, I will introduce two interrelated ideas designed to elucidate the problematic nature of contemporary legal interpretation: the concept of law as a chaotic discourse, and the problem of the legal pseudotext. These ideas will be presented and explored while we undertake a close reading of an appellate court opinion; however, the purpose of this reading is not the traditional one of attempting to...