Thursday, June 7, 2007

Deconstruction and Law: So What?

So I know there are smarter people out there who've thought about this, but here's my nutshell take:

So what?

Let's assume that it's true that deconstruction complicates interpretation in that it opens up numerous possibilities for the interpretation of a given text, including a statute or a prior judicial opnion.

Is this a revelation to anyone? To anyone whose been to law school, that is? The key to good lawyering is, in part, being able to identify as many good arguments as possible in favor of your client. Deconstruction is useful to lawyers to the extent that it opens up new possibilities for argument, but is it news to lawyers that a statute has many meanings?

I admit that law is a particularly interesting place for a deconstructionist to experiment, because it is perhaps the most dierect place where words actually exert an impact on society. Law is words that people must obey, or face punishment. That's interesting, to a theorist, because how often is it that the texts that they study (and perhaps therefore their work) could have an impact, could matter as much as it might matter in legal studies, outside the law?

But for a lawyer? If you take the leaset radical idea of deconstruction and postulate that there is some unknown limit to the potential number of valid interpretations out there, and that many interpretations obscured by the words can be justified by reading the text in a search for heirarchies, or by looking in the "margins" of the text, then what? Well, I guess you are strengthened in your belief and training from your law school days that there is always an interpretation that will favor your client-- and you will keep looking for such an interpretation, but other than that, how are you helped? Does deconstruction suggest new possibilities of legal argument? Maybe on the very extreme margins, but not normally.

The fact is that of the mutliplicity of meanings suggested by deconstruction, only a paltry few are likely to be at all persuasive to judges, in part because however much its proponents may protest, deconstruction works at cross-purposes with the law-- the entire point of the law is to limit, to constrain, to mark territory, to say "not this but that," while the entire point of deconstruction as usually practiced is to expose those limiting constraints as arbitrary heirarchies. Meanings that are 1) likely to be exposed by deconstruction; 2) not likely to be exposed by traditional analysis; and 3) likely to be persuasive to judges are likely to number something close to zero in most cases.

Now, as a judge, you have a much different question in front of you. You have text, and rather than simply making an argument as to what the text means, you have to set a limit, you have to say what it does in fact mean, and you have to do so in a way that helps people decide future case and organize their conduct.

If you're that kind of judge, how are you helped by decontruction's insights? Here, as I've said, you can't really be helped, since the point of deconstruction is to expand and explode limitations on interpretation and the point of law is to limit, to prevent, to say, this far and no further and your job as a judge is to (if you will) create a new text that layers a coherent meaning on top of the old text and (almost by definition) provides more guidance, more specific limits as to what the old text means-- i.e., draws a finer distinction between what is this and what is that.

For many judges, though, deconstruction just makes them skittish and scared-- or as Cass Sunstein puts it, makes them "minimalists." The essence of the Sandra Day O'Connor "oh, this is so complicated, less not decide anything other than the case before us" school of judging maps pretty closely onto what I take to be the central insight of deconstruction-- i.e., that meanings are complicated, and that limitations are arbitrary and hence bound in future cases to produce arbitrary results. The logical corrollary of this kind of thinking is that we shouldn't put out limitations because they will produce in some future case an injustice.

For my money, this is a backwards way of thinking. Of course limits can be arbitrary and may work injustice in some cases. But the point of law is to guide people as to how to arrange their affairs. The effect of saying, "ask me again later" to every case is that no one knows how to behave or what the consequences will be for their behavior. Only if you accept that people are going to act in a particular way regardless of the law and then try to estimate what should justly be done to a particular person who did a particular thing does it make sense to keep saying "ask me again later" to every case. Maybe there are some areas of the law where the ask me again later approach is warranted, but surely most areas of the law ought not be that way.

Scooter Libby

Ok, so I'll say it, since no one else (not even the good folks at National Review) will: no fair-minded judge could possibly have sentenced Scotter Libby to 30 months in prison.

On the basis of that sentence alone, I'm content to say that Libby is the victim of a partisan hack-job.

To make this clear, I'm going to go Dwight Schrute on you:

FACT: Libby never committed any crime at any time until he apparently lied about minor details of his conversations with reporters to the grand jury.

FACT: There was no "conspiracy" of any kind to out Valerie Plame, and the leak never came from Libby or anybody else in the administration, and at the time that Fitzgerald was questioning Libby, he KNEW that Libby wasn't the leaker-- so why was he asking Libby questions at all?

FACT: Fitzgerald never proved and never tried to prove that Valerie Plame was a covert agent or that there was otherwise anything illegal about revealing her name.

FACT: During the "liability" phase of the trial, Fitzgerald actively argued that whether Plame was or was not covert was irrelevant to the case, and therefore was allowed to withhold evidence that would have likely shown that she was NOT a covert agent, even though Libby asked for the information in order to defend himself.

FACT: During the sentencing phase of the trial, Fitzgerald argued that Valerie Wilson was covert, and that Libby should be sentenced as though he had revealed the name of a covert agent even though 1) Fitzgerald had never charged Libby with revealing the name of a covert agent; and 2) had argued successfully that her status as a covert agent was irrelevant and thereby avoided turning over information that Libby's team could have used to prove that she was not a covert agent; and 3) Libby had not been convicted of outing a covert agent.

I am astonished at Patrick Fitzgerald's audacity. I have practiced in front of federal courts in 8 states and the District of Columbia and I would never have had the sheer cojones to try to get court approval for such an obviously and ridiculously unfair and unjust result in my favor(clearly, I need to be more bold).

More astonishing is that the Judge in the case is enough of a partisan hack that he let Fitzgerald get away with this sort of obvious bait and switch technique. I can only hope that on appeal cooler heads will prevail. I hope they do, and I hope there's no need for a pardon. I need a reversal to restore my faith in the justice of the system.