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Citation: 33 Conn. L. Rev.

1099 2000-2001

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In the Disney comics, Donald, Mickey, and their acolytes visit savage
lands. Sometimes they reach the equivalent of the land of the pachyderms
in its most Edenic state, as ifthey were thefirst visitors in history,and this
enormouslyfacilitates their penetration. They are received without suspicion and generallygo back to theirfrenetic metropolis having procured a
good dose of the sun and bottledpurity, as well as a hefly vitaminicjolt of
raw materials and treasures which they pack into their suitcases. The innocentsfrom the city meet thosefrom the backlands and everything works
out delightfully. History, however, like a rotten apple, would intrude,
wouldn't it. Never mind.2
Somewhere in these private minds, the last one comesjust in time to clear
out the chambers and sew up the lips ....
Somewhere in these prying

hearts conflicting historiestear us apart.


To solve conflicts, our legal system requires lawyers and judges to

look to the past to reconcile and distinguish the present case from precedent. However, there is nothing natural about legal precedent and history,
and lawyers and judges often struggle to identify the appropriate issue and
relevant precedent. Furthermore, legal precedent does not remain the same
over time, but constantly changes, not only because each new published
decision on a particular issue must be considered by a later judge, but also
because each new decision re-appropriates precedent, and in doing so
changes it. For example, later decisions on the Commerce Clause4 affect
how judges will read earlier decisions, and an awareness of how legal adjudication mediates its history to justify its present to resolve conflicts is

3. FUGAZI, Provisional,on 13 SONGS (Dischord 36, Dischord Records 1989).
4. U.S. CONST. arLI, 8, cl.
5. This will be explained in more detail throughout this Comment.



[Vol. 33:1099

important to help judges situate themselves within history.

Even so, why bother discussing legal theory-after all, do we really
expect that judges and lawyers fancifully sit around thinking about how
they think and trying to identify their assumptions each time they write a
judicial opinion or brief? And if we are going to spend time analyzing
legal theory, why consider literary theories-aren't law and literature different enterprises, written for different purposes and audiences? While law
and literature are not exactly the same thing, they share important general
qualities, including their reliance on language to construct meaning.6 Furthermore, literary theory does not naturally emanate from or apply to literature alone, and can be useful to analyze other types of texts.7 Rather than
contaminating legal studies, interdisciplinary approaches provide alternative tools to interpret legal texts, and legal studies offer new ways to perceive literary works.'
Although interpreting literature is not the same activity as interpreting
law, at the most fundamental level both literary and legal analysis involve
textual interpretation. For this reason, legal scholars increasingly have
recognized that literary criticism may provide insights into legal criticism.9
During the past decade and a half, Ronald Dworkin and Stanley Fish have
engaged in a lively debate (sometimes, it becomes a lively spat) about the

6. In his provocative article, The Hermeneutics File, 58 S. CAL. L. REV. 211 (1985), Thomas C.
Grey illustrates how, sometimes, classifying a document as law (a will) or literature (a poem) can be
difficult and ambiguous.
7. See TERRY EAGLETON, LIrERARY THEORY: AN INTRODUCTION vii (2d ed. 1996) [hereinafter
EAGLETON, THEORY]. Eagleton notes that "[h]ostility to theory usually means an opposition to other
people's theories and an oblivion of one's own." Id. at x. Therefore, theory, or at least the type of
demystified theory that Eagleton advocates, does not "get[] in between the reader and the work," but
instead enables the reader to recognize a "literary work.., in the first place," and helps instruct the
reader "how... to read it." Id. This does not mean that the theory paternalistically tells the reader how
to read, but rather that the theory is what makes it possible for the reader to read in the first place.
Without a pre-existing theory (conscious or unconscious) about interpretation and meaning, the words
would just be stray words on a page, like a Rorschach test.
In addition, Eagleton devotes an entire chapter, and implicitly his entire book, trying to define
what literature is,
further revealing that even the seemingly straightforward classification of texts can be
ambiguous or problematic. Id. at 1-14. Stanley Fish notes that what we define as literature changes
over time, and that "literature [does not] exhibit[] certain formal properties that compel a certain kind of
attention; rather, paying a certain kind of attention (as defined by what literature is understood to be)
results in the emergence into noticeability of the properties we know in advance to be literary." Stanley
Fish, Introduction, or How I Stopped Worrying and Learned to Love Interpretation,in IS THERE A
Fish, Introduction].
8. For example, even legal casebooks contain ideological assumptions which often go unquestioned, and which influence how readers process the information in the book, and implicitly how students internalize methods of reading and analyzing law.
Levinson & Steven Mailloux eds., 1988) (contending that it is important to cultivate a dialogue between the literary and legal theory).


nature of legal interpretation.'0 This debate provides both a context to examine the relationship between literary and legal interpretation, and also an
illustration of how interpretation always involves some sort of struggle. I
do not mean to suggest that all meaning can be reduced to language-while
discourse helps to condition individuals to behave in certain ways and thus
to internalize power structures, law cannot be reduced to word games and
plays on language. After all, real lives and rights are at stake, and behind
every legal case there are material facts.
This Comment will first outline the major premises of the
Fish/Dworkin chain enterprise debate in Part II. Part III will then exam-

ine three contested points raised by their debates. First, this Part will ex-

plore the notion of the chain enterprise, and will consider how various links
in the "chain" enterprise relate to each other. Second, it will examine

Fish's notion of interpretive communities. Third, this Part will consider

how Dworkin and Fish conceptualize the problem of authorial intention.

Part IV will examine some criticisms of Fish, focusing primarily on criticisms of interpretive communities; this Part will also consider how
Dworkin's theory offers useful responses to Fish's shortcomings. Finally,
Part V will summarize the strengths and weaknesses of Dworkin's and
Fish's theories, and will propose approaches to the problems Dworkin and
Fish leave unanswered. The issues raised by Dworkin and Fish are particularly relevant today, given the Supreme Court's movement to interpret

statutes by looking simply at the "plain language," and in doing so avoiding considering the statute's purposes and relevant legal history. Dworkin

and Fish challenge us to recognize the critical importance of analyzing

legal problems in a larger context that recognizes interpretation as alwaysalready involving conflicts, tradition, and history."2
10. Ronald A. Dworkin's relatively concurret texts, "'Natural' Law Revisited," 34 U. FLA. L
REV. 165 (1982) [hereinafter Dworkin, Natural, and Law as Interpretation,In THE POLITICS OF INTERPRETATION 249 (WJ.T. Mitchell ed., 1983) [hereinafter Dworkin, Interpretaton], triggered the
debate. Stanley Fish responded in Working on the Chain Gang: Interpretationin Law and Literature,
60 TEX. L. REV. 551 (1982) [hereinafter Fish, Chain]. Dworkin replied in My Reply to Stanley Fish
(and Walter Benn Michaels): Please Don't Talk About Objectivity Any Aore, In THE POLITICS OF
INTERPRETATION 287 (WJ.T. Mitchell ed., 1983) [hereinafter Dworkin, Objctivity]. Fish responded
with two more articles. See Stanley Fish, Wrong Again, In DOING WHAT CO.ES NATURALLY:

[hereinafter Fish, Wrong]; Stanley Fish, Still Wrong After All These Yeanr, in DOING WHAT COMES

356 (1989) [hereinafter Fish, Still Wrong].

II. Notice that what I identify as "the major premises" itself involves an interpretation and a value
choice of what I consider to be most important, at least for the purposes of this Comment, in the
Fish/Dworkin debate. There is nothing natural or inherent about what Iidentify as the key elements of
the debate.
12. When I say "always-already," I mean that the law does not come to us in an uninterpreted form,
waiting for us brilliantly to decode it. When we read a legal decision (or law review article), we read
through a certain frame, which is affected by our previous assumptions about what law or what legal


[Vol. 33:1099



A. Dworkin 's Chain Enterprise

In Law and Interpretation and Natural Law Revisited, Dworkin explains his chain enterprise theory, which likens common law judicial opinions to chapters in a chain novel.2 3 Dworkin chooses the chain novel metaphor because it provides a structure to analyze how the legal discipline
must re-appropriate its past to justify its present decision and extend into
the future.' 4 According to this theory, a group of novelists convenes and
agrees to write a "chain" novel, where they will draw random numbers and
each novelist will write a chapter. t5 The novelists do not write in a random
fashion, but write sequentially, whereby one person "starts" the novel, and
sends the chapter to a subsequent author, who reads the previous chapter
before authoring her own chapter.' 6 Dworkin emphasizes that the authors
seek to create a "single unified" "work of art"that is "consistent."'" Rather
than starting anew, each novelist after the first must "continu[e] the novel
in the best possible way, by writing plot and development that can be seen
to flow from what has gone before."' 8 Re-appropriating previous chapters
to unify the novel is a necessary precondition for participating in the enterprise. 9
Dworkin further argues that common law legal adjudication shares sig-

nificant features with the chain novel enterprise."0 A judge deciding a case
does not "writ[e] on a clean slate," but rather must synthesize relevant

scholarship is. For a discussion of what it means to be "always-already" constituted, see LOUIS At,.
THUSSER, Ideology and Ideological State Apparatuses, in LENIN AND PHILOSOPHY 175-76 (1971)
("Ideology has always-already interpellated individuals as subjects .... Hence individuals are 'abstract' with respect to the subjects which they always-already are.").
13. See Dworkin, Natural,supra note 10, at 165; Dworkin, Interpretation,supra note 10, at 249.
Interestingly, these two articles came out around the same time, and their substance partly overlaps. It
isbeyond the scope of this Comment to engage in a detailed analysis of where the two pieces converge
and diverge.
14. Dworkin, Natural,supranote 10, at 166.
15. Id. at 166-67.
16. Id. at 167.
17. Id at 167-68. Fish and other critics have criticized Dworkin's "aesthetic" theory, equating it to
New Criticism, a movement in literary theory which emphasizes the work as a unified whole. A detailed discussion of his aesthetic hypothesis and New Criticism is beyond the scope of this Comment.
However, part of a judge's responsibility is to decide cases within the parameters of stare decisis, and
Dworkin is right to suggest that judges must be concerned with presenting their decisions as coherent
and consistent with the legal system. The problem is that Dworkin does not clearly say that what one
defines as coherent and consistent is itself a value judgment: there is no naturalstyle or structure of
writing and judicial decision making that is coherent and consistent.
18. 167.
19. Again, Dworkin does not explain what he means by "unify," and two different authors (even
writing in the same genre) might have different perceptions of unification.
20. Id. at 168.




precedente2 '

and must "showfl these [previous opinions] in the best light...

as coming as close to the correct ideals of ajust legal system as possible."
In other words, a judge does not write in a sterile ahistorical vacuum, but
must conform his decision to previous decisions on similar issues. A judge
deciding a case situates himself in the chain of legal history, and either
extends precedent or distinguishes the present case from past decisions.
Dworkin's chain enterprise metaphor responds to what H.L.A. Hart describes as the "nightmare," where judges simply impose their own beliefs
and values when they decide hard cases.Z According to Dworkin's theory,
judges should reconcile legal precedent with the judge's notion of "the best
political justification of that law." 4 Thus, judges generally do not impose
their subjective whims on the text, but draw on fit (a judge's responsibility
to reconcile present cases with the past) and justification (political morality
and integrity, which justifies a decision in the "best" possible way for the

Dworkin's chain enterprise theory is attractive because it provides a

way to analyze how judges deal with legal history and with past decisions.
Because our legal system is based upon reconciling or distinguishing present cases from precedent, judges must constantly grapple with legal history and past decisions to resolve present cases. The chain enterprise theory recognizes how judges must re-appropriate the past in order to make
present decisions. Dworkin's theory accounts both for law's need to accommodate change and for its need to reconcile with history to produce
coherent principles and decisions. Dworkin perceives law as a community
progression, not as a discrete series of isolated, relative decisions.
B. Fish'sResponse to Dworkin 's Chain Enterprise
Even though he is drawn to certain aspects of the chain novel metaphor, literary-trained Stanley Fish finds numerous problems with
Dworkin's chain enterprise, and he argues that Dworkin falls prey to the
twin taboos he tries so hard to avoid-- pure objectivity" (discovering
meaning that is objectively "there") and "pure subjectivity" (imposing
one's own beliefs on the text).' Fish also criticizes Dworkin's supposed
distinction between what it means to "create" and what it means to "interpret," arguing that interpretation and creation are not binary oppositions
which can so simply be opposed to each other, and that an act of creation
21. See infra Part II.A.2 for a discussion of the problems of determining what counts as "relevant"
22. Dworkin, Natural,supranote 10, at 168.
23. H.LA. Hart, American Jurisprudence through English Eyes: The Nightmare and the Noble
Dream, in ESSAYS INJURISPRUDENCE AND PHILOSOPHY 123, 126 (1983). Of coure. one could rightfully argue that all cases are hard, in the sense that all cases require interpretation.
24. Dworkin, Natural,supranote 10. at 166.
25. Fish, Chain,supra note 10, at 552.


[Vol. 33:1099


always-already includes
In addition, Fish asserts that the
difference between earlier authors and later authors is not so pronounced as
Dworkin contends, because all authors engage in interpretation, and are
constrained by discourse structures which they have internalized."
According to Fish, authors are constrained by the prior assumptions indoctrinated in them by their interpretive communities, which govern how
they both write and read texts. Fish also argues that all authors "think
within" rather than "think 'of" these institutional discourses and practices.29 In other words, the discourses and practices constitute the author,
who internalizes them so that he can never totally step outside and be fully
aware of his constitutive forces. Dworkin's chain enterprise is similar to
Fish's interpretive communities in the sense that an author engaged in the
chain enterprise already shares a notion of what it means to write a novel or
legal opinion. But where Dworkin argues that later authors are more constrained by the history of the chain than earlier authors, Fish contends that
all authors are equally constrained, because earlier writers too must engage
in interpretation to contribute their chapter.30
Thus, according to Fish, earlier authors do not have more freedom than
later authors, because every author is always-already constrained by the
conventions and expectations of a particular genre. Fish argues that
Dworkin tries to take some acts outside interpretation: for example, Fish
objects to Dworkin's claim that the first author creates (albeit within a
genre which constricts his options) whereas later authors interpret." Fish
also criticizes Dworkin's narrow view of authorial intention and argues that
intention is not confined to the private mind of the author, but that discerning authorial intention itself is always-already an act of interpretation. 2
C. GeneralCriticismsofFish

Although Fish's criticisms of Dworkin deserve attention, and Fish's

theory that interpretation always-already pervades our thinking is incredibly useful, Fish's theory too has its shortcomings, which will be examined
in Part IV. For example, while Fish argues that his notion of interpretive
communities rescues him from charges of extreme subjectivity and relativ26. Id. at 554.

27. See id. at 552-53.

28. Fish's interpretive communities will be discussed at greater length in Part IV, but generally
interpretive communities are comprised of people with common institutional training, who arguably
share similar modes oforganizing and categorizing texts.
29. Fish, Chain, supra note 10, at 553.
30. Fish explains what he means by equal constraints: "By 'equally' I mean equally with respect to
the condition of freedom; I am making no claims about the number or identity of the constraints." Id.
at 555.
31. For example, at one point Dworkin states that "every novelist but thefirst has the responsibility
of interpreting what has gone before." Dworkin, Natural, supranote 10, at 167 (emphasis added),
32. Fish, Chain, supra note 10, at 564.




ism, his interpretive communities suffocate human agency and individual

choice. Furthermore, Fish never clearly defines interpretive communities
or explains how they are formed, and this mystification further serves to
undermine individual autonomy and communal agency.
Ultimately, Fish's ideas about the importance of interpretive presuppositions, combined with Dworkin's concerns for the political responsibility
of judging and for grappling with history, suggest a more powerful legal
theory than either author does alone.

In order to synthesize present decisions with precedent, judges must

first be able to identify which legal precedent is relevant or appropriate.
Because different lawyers and judges may disagree about what the relevant
legal issues in a particular case are, identifying the appropriate precedent is
a contested act of interpretation. Judges may resolve present cases by reconciling and distinguishing the present case with precedent, but it is never
a clear given what the issue is, what the proper precedent is, and whose
legal history is integrated. This section will briefly consider Dworkin's
law/literature analogy, will examine problems with identifying the appropriate precedent, will look at the problem of authorial intention, and will
consider how Dworkin and Fish perceive the relationship between earlier
and later writers.
A. How Do We Identify the Appropriate Chain?
1. JudicialOpinions and Literature-WhatIs the Chain Enterprisein
It is important to realize that Dworkin is not claiming that novels and
judicial opinions are exactly the same.33 He recognizes that literary criticism offers analytical tools to explore judicial opinions, and he selects the
chain enterprise because it offers a perspective to analyze how authors "extend a discipline into the future by re-examining its past.:'" The chain enterprise metaphor offers insight to investigate how authors integrate preexisting texts and histories to construct later texts, and how later authors
solve present problems within the boundaries of a canonical history and
One initial concern about Dworkin's theory might be the uncertainty
about what, in literature, parallels the chain enterprise. After all, most lit33. Although there are significant differences between law and literature, Dworkin notes that he
chose the chain enterprise because it minimizes those differences. Dworkin. Natural,supra note 10. at
34. Id.
35. Seeid.



[Vol. 33:1099

erary works are not written in the chain novel fashion as laid out by
Dworkin36--chapters are not passed out from author to author. Authors of
literature do not write in a vacuum, but write within a tradition that informs
them. 7 Furthermore, a single author writing her own novel engages in a
sort of chain enterprise, as she writes within a context of a related text (her
own text). Each chapter she writes has some connection to other chapters,
and she strives to create her "best" work of art (whatever that means), in
whatever particular genre she sets out to write. 8 Even the most dissonant
post-modern novel can be seen through the chain enterprise lens, because a
decision not to relate later chapters to earlier ones is, in a sense, making a
connection between chapters, and making an interpretation about what is
"best" for this particular novel. Also, literary criticism about a particular
novel or poem can be seen as a chain enterprise, in that subsequent critics
constantly respond to earlier critics. For example, a critic writing on Milton will have to situate himself within established Milton criticism, if he
wants to be published and recognized by the Milton community as a legitimate scholar.3 9
However, writing a traditional chain novel, a single-author novel, or
literary criticism is in no instance exactly the same activity as judicial decision making. This is not because literature is apolitical, but because judges
and literary authors and critics face different pressures, write for different
reasons, and address different audiences.4" For example, the pressure a
36. See id. at 167.

37. One theory of literary criticism explores how literary authors constantly revise and try to escape
the shadows of their predecessors, in what Harold Bloom calls the "anxiety of influence." See HAROLD
38. Note that what counts as the "best" work of art depends on one's prior understanding of genre.
Whereas a New Critic inspired author would seek to create a novel that is coherent and unified, a postmodem psychological inspired author might seek to create a novel that is dissonant. This is not to
assume that one cannot have New Critic and post-modem qualities simultaneously.
39. Note the problematic adjectives, such as "established" and "legitimate," that I use in my description. My point is that one could write an article on Milton that made no reference to previous
Milton scholarship, but the article likely would not be published in a reputable academic journal. I am
not assuming that one cannot write a compelling essay on Milton without situating himself within the
critical tradition, and I am not assuming that every author wants to be recognized as a legitimate Milton
scholar. However, if one wants to teach in a research university, one generally must conform to the
expectations of the academic community--one must write research papers in the approved way.
40. This is not to say that the pressures, purposes, and audiences can never be the same. But it is to
recognize that judges have different types of restraints and freedoms than do novelists, poets, and
literary critics. Literary authors can take more formalistic and structural liberties than judges. Compare ART SPIEGELMAN, MAUS: A SURVIVOR'S TALE (1986) (employing the graphic novel format to

tell the story of one family's experiences during the Holocaust) with GABRIEL GARCIA MARQUEZ, TilE
AUTUMN OF THE PATRIARCH (1976) (employing single paragraphs and sentences that span dozens of
pages and magical realism to tell the story of a timeless and cruel Caribbean dictator). Salmon Rushdie's experiences after writing The Satanic Verses illustrates that literature can be extremely political.
See, e.g., W.L. Webb, The Imam and the Scribe: Can the Freedom of LiteratureBe Abrograted Without
Other Freedoms Being Jeopardised?-TheRushdie Affair, THE GUARDIAN (LONDON), Feb. 17, 1989,
availableat LEXIS, News Library, Guadm.




judge faces to decide a case and write his opinion within precedent's
boundaries is considerably different from the pressure a novelist faces to
relate later chapters to earlier chapters in a novel!' While a literary critic
seeks "interpretive crises" and multiplicity of meaning, a judge seeks to
"avoid crises" and to solve problems in a coherent fashion 2 To be perceivedeas fair, law must be predictable (yet flexible), and judges face pressure to decide like cases similarly. Of course, different people may disagree about whether two cases are alike or different. Ultimately, different
modes of reading law and literature lead to different results (celebrating
heterogeneity in literature, seeking coherence and solutions in law); there is
nothing in literary or legal texts inherently requiring a particular interpretation.
Because law and literature have different goals and pressures, it is important to realize that the scope of any comparisons between them-one
unified mode of interpretation for both disciplines-will be limited. 43 Because interpretation is directed by prior assumptions that readers and authors bring to texts, a literary critic seeking multiplicity of meaning and a
judge seeking one coherent reading because he must make and justify his
decision bring different assumptions to texts. Dworkin's chain enterprise
metaphor seems more pertinent to legal interpretation than to literary criticism, because law is more bound to "the imperative of precedent, ' and
Dworkin's chain enterprise theory seeks unity and coherence which is
needed to legitimize the legal machinery. At the same time, law can be
seen as literary because meaning is always contested (there is no naturally
correct meaning that derives from the author's language), and interpretation always involves struggle, and any theory seeking coherence and unity
runs the risk of ignoring conflict and power hierarchies. The difficulty of
identifying what, in literature, counts as a chain enterprise highlights the
difficulties in law of identifying the relevant issues and the appropriate
chain. Ultimately, in literature, previous chapters of the same novel, previous writers in the same genre, and previous literary criticisms may all be
part of a tradition that is a heterogeneous chain enterprise. At its most basic level, the law/literature analogy reminds us that law and legal history
41. For example, a novel writer could spontaneously decide in the final chapter to declare the
preceding chapters to be a dream.
PRACTICE OF THEORY INLITERARY AND LEGAL STUDIES 137 (1989). Also, while it is acceptable for
literary critics to merely point out problems without having to solve them, judges are faced with the
pressure to solve actual problems, without the freedom of celebrating plurality ofrmeaning.
43. See Jessica Lane, The PoeticsofLegalInterpretation,in INTERPRETING LAW AND LITERATURE:
A HERMENEuric READER, supra note 9, at 269,270.

44. Id. at 283.

45. Although some critics liken Dworkin to the New Critics because he seeks unity and coherence,
see Fish, Wrong, supra note 10, at 118, unlike the New Critics, Dworkin looks outside the text to construct meaning.


[Vol. 33:1099

are not homogenous; even though judges must reach coherent decisions,
there will always be disagreement about what counts as the appropriate
tradition and what counts as a "coherent" decision.
2. Identifying the AppropriatePast
Dworkin rightfully recognizes that later judicial opinions on a particular issue must take into account previous decisions on the issue-this is the
heart of stare decisis. There is nothing natural about this, but rather this is
the way that our legal system is constructed. For example, recent Commerce Clause cases such as United States v. Lopez46 had to be analogized
and distinguished from cases advocating a more "broad" reading of the
Commerce Clause. Lopez responds to the Gun-Free School Zones Act of
1990, in which Congress "made it a federal offense for any individual
knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone."4' The Court held that the
Act exceeded Congress's Commerce Clause authority, because it "neither
regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." 48 Because Lopez
revised the Court's recent Commerce Clause jurisprudence by rejecting the
previously-accepted broad interpretation of what counts as interstate commerce, the opinion focuses extensively on the history of Commerce Clause
cases to legitimize the Court's decision.49 In order for the decision to be
accepted by the legal community, the majority must reconcile and distinguish Lopez's specific facts with the established chain of Commerce
Clause cases.
So far, this seems straightforward. In Lopez, although the majority,
concurrences, and dissents disagreed about how precedent should be applied or distinguished, they generally agreed on the relevant precedent
cases that should be applied. 0 However, often in law it is not just the in46. 514 U.S. 549 (1995).
47. Id. at 551 (quotations omitted).
48. Id.
49. Lopez cites to dozens of Commerce Clause cases, including: Gibbons v. Ogden, 22 U.S. I
(1824), Veazie v. Moore, 55 U.S. 568 (1863); Kidd v. Pearson, 128 U.S. I(1888); United States v. E.C.
Knight, 156 U.S. 1 (1895); Shreveport Rate Cases, 234 U.S. 342 (1914); A.L.A. Schechter Poultry
Corp v. United States, 295 U.S. 495 (1935); Carter v. Coal Co., 298 U.S. 238 (1936); NLRB v,Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937); United States v. Darby, 312 U.S. 100 (1941); United States v.
Wrightwood Dairy Co., 315 U.S. 110 (1942); Wickard v. Fillburn, 317 U.S. 111 (1942); Katzcnbach v.
McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964);
Maryland v. Wirtz, 392 U.S. 183 (1968); Nat'l League of Cities v. Usery, 426 U.S. 833 (1976); Garcia
v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Lopez, 514 U.S. at 553-59.

50. To give one example, every Lopez author except Justice Stevens cites to Wickard. Id. at 554
(Rehnquist, C.J., majority opinion); 573 (Kennedy, J.. concurring); id. at 594 (Thomas, J., concurring); id. at 608 (Souter, J., dissenting); id. at 615 (Breyer, J., dissenting). Instead ofrelying on history,
Justice Stevens in his brief dissent appealed to present needs: "Guns are both articles of commerce and
articles that can be used to restrain commerce. Their possession is the consequence, either directly or



terpretation of the same cases that is at issue, but it is the very question of
which cases and which issues are at issue. Thus, there are two main areas
at stake: 1) identifying the "appropriate" precedent; and 2) interpreting the
precedent or appropriate legal tradition.
Unlike Dworkin's chain novel, judicial decisions are not neatly collected and organized within an intact single cover, and thus it is not always
obvious which earlier "chapters" are relevant.5 Often in law, it is not clear
what the issue is; in fact, what judges and readers perceive as the issue
itself is an act of interpretation, which depends on the various assumptions
that different readers bring to the same problem and legal text. Even
judges responding to the same set of briefs do not always agree on what the
issues are. For example, in Friendswood Development Co. v. SmithSouthwest Industries, the majority frames the issue as being whether or
not a landowner can withdraw percolating groundwater from his land indefinitely, even if it seriously damages neighboring property.53 The majority looks to previous decisions dealing with withdrawals of underground
water to assert that this right is absolute.' To justify its ruling, the majority discusses a string of cases, which legitimize a landowner's absolute
right to drain the water beneath his land, regardless of its effect on others.55
In contrast, the strong dissent contends that the issue in Friendsiwoodis not
about any absolute right to withdraw groundwater; instead, the case is
about subsidence and geologic rights.56 Because the dissent frames the
issue differently, it conceives the chain differently, cites different precedents, and arrives at a different conclusion." Both majority and dissent are
faithful to stare decisis and to the legal tradition and precedent, but because
each identifies the case as being about a different issue, each solves the

indirectly, of commercial activity.... Whether or not the national interest in eliminating that market
would have justified federal legislation in 1789, it surely does today." Id. at 602-03 (Stevens, J.,
51. In Dworkin's chain enterprise, the early authors send their chapters to the later authors, and the
later authors do not have to determine which chapters, or which chain, is relevant. See Dworkin, Natural,supra note 10, at 166-67.
52. 576 S.W.2d 21 (Tex. 1978).
53. Id.at2l.
54. Ld.
at 25-26.
55. 1d4 see also Texas Co. v. Burkett, 296 S.W. 273 (rex. 1927) (standing for a landowner's "ahzolute right to sell percolating ground water for industrial purposes off the land"); City of Corpus Christi
v. City of Pleasanton, 276 S.W.2d 798 (Tex. 1955) (supporting that the Texas Supreme Court has
rejected the majority trend of the reasonable use rule and has maintained the absolute use rule).
56. Friendswood,576 S.WV.2d at 31-32 (Pope, J., dissenting).
57. 31-32; see alsoNichols v. Woodward Iron Co. 103 So. 2d 319 (Ala. 1958) (finding that a
landowner's right to subjacent land support is absolute and "is not subordinate to any right" of a neighboring property owner); New York Central R. Co. v. Marinucci Bros. & Co., 149 N.E.2d 680 (Mass.
1958) (finding that "a landowner has the right to the support afforded by subtenanean waters"); Gregg
v. Delhi-Taylor Oil Co., 344 S.W.2d 411 (rex. 1961) (finding that a property owner is protected from
damage to subsurface by neighbors).


[Vol. 33:1099

problem of the sinking land differently."

Both sides have plausible arguments that their results best serve the
community: whereas the majority believes that its decision preserves the
valuable reliance expectation of the defendant, the dissent believes its result preserves the valuable property rights of the plaintiff. Dworkin provides no method to determine which result is "best," and ultimately Fish
correctly argues that there is no objective way to reconcile competing ideological beliefs so as to determine objectively the "best" solution for the
community. Furthermore, the community is made up of people with different political interests, and while the majority's solution may be "best"
for developers, the dissent's proposal may be "best" for neighbors of developers. There is no objective answer as to whose rights are more valuable, and legal and policy arguments can be made for each side.
Dworkin's theory is thus problematic because it mystifies conflict and inconsistencies, which are part of history.
Ultimately, it is not always obvious what the appropriate chain of cases
is, and even within a particular chain, there are always different ways of
interpreting a particular case. 9 In Lopez, the majority, concurrences, and
dissents each interpret precedent in substantially different ways. In fact,
where it is "obvious," Fish would argue that interpretation has alwaysalready done its job-an interpretation only appears obvious because the
reader/judge is governed by a prior understanding of property rights or the
Commerce Clause and how law should function. At one point, Dworkin
observes that "[a]ny judge forced to decide a lawsuit will find, if he looks
in the appropriatebooks, records of many arguably similar cases decided
over decades or even centuries ... in periods of different orthodoxies of
procedure and judicial convention." Dworkin's word choice of "appropriate" is interesting--does he mean by "appropriate" that a judge merely
looks at general legal precedent, as opposed to poetry, or does he mean
that, because issues are so clear, a judge automatically goes to the "appropriate" chain of cases cleanly resolving the issue at hand? However,
Dworkin also admits that the cases may only be "arguably similar," and
thus seems to acknowledge the possibility that what one deems "appropriate" is not a given fact, but an interpretive choice.6
Ultimately, Fish and Dworkin, in different ways, agree that what a particular judge perceives as the appropriate books is not accidental, but has
something to do with the fact that a judge is situated within the legal profession and within community expectations of what constitutes a legal
58. For an insightful analysis of Friendswood, see JEREMY PAUL & RICHARD MICHAEL FISCHL,
59. See Dworkin, Natural, supra note 10, at 169.
60. Dworkin, Interpretation, supra note 10, at 263 (emphasis added).
61. This serves as another example of Fish's main criticism of Dworkin-that Dworkin tries to
have it both ways. See Fish, Chain, supra note 10, at 552.




opinion. The next section of this Comment will explore Dworkin's notion
of genre and Fish's notion of interpretive communities to investigate how
authors are institutionally trained to retrieve meaning from texts.
B. The "First"Author andInterpretive Communities
Dworkin and Fish agree that authors are directed by their prior understandings of what it means to write a text in their field (e.g. chain novel or
legal opinion). For example, Dworkin's chain novelist is always-already
constrained by what it means to create characters and plot; Dworkin's
judge is always-already constrained by what it means to construe facts and
to apply legal precedent. Different historical places and times may have
different understandings of "what it means" to write a novel or judicial
opinion. There is nothing natural about such prior understandings-they
do not arise spontaneously, but are social and intellectual constructs that
arise from material conditions. This section will compare and contrast
Dworkin's chain enterprise and Fish's notion of interpretive communities.
As discussed in Part II, Dworkin's metaphor portrays interpretation as
a chain enterprise, whereby the first author creates, and subsequent authors
are bound to follow and interpret the text of the first author.' He asserts
that "every novelist but thefirst has the responsibility of interpreting what
has gone before .... ." But even though the first author is not constrained
by having to interpret earlier written chapters, he is constrained by his prior
understanding of the genre or institution within which he writes." Fish
further argues that even the "first" author is interpreting and is not merely
creating, because the constraints of what it means to write a novel or legal
opinion frame how this "first" author conceives and constructs the text.65
Meaning is never inherent in any text, but is produced by interpreters
(which include both authors and readers).
For example, in his chain novel example, Dworkin invites the reader to
"imagine... that a group of novelists is engaged for a particular project."
Already, the author is constrained by being a "novelist" in a "group" working on a "particular project." Dworkin's chain novelists are not randomly
selected; instead, they share a background of training and ideology about
what constitutes a "good" novel. The particular group has a preconceived
notion of what it means to be a novelist, and a preconceived plan of what
62. See Dworkin, Natural,supra note 10, at 167.
63. Id. (emphasis added). Interestingly, in a footnote in Law as Interpretation,Dworkin too acknowledges that the first author is not totally free: "Even the first novelist has the responsibility of
interpreting to the extent any writer must, which includes not only interpreting as he writes but interpreting the genre in which he sets out to write." Dworkin, Interpretation,supra note 10, at 262 nA.

Neither Dworkin nor Fish investigate the tensions between how different individuals, or different
communities of interpreters, perceive a particular genre.
64. Dworkin,Natural,supranote 10, at 167.
65. Fish, Chain, supranote 10, at 555.
66. Dworkin, Natural,supra note 10, at 166.


[Vol. 33:1099

their "particular project" will be.67 Thus, the "first" author is not completely free to write whatever she wants. Although she may not be constrained by earlier written chapters, she is constrained by the particular
group's vision of novelists and novel-writing.68 Before they begin writing,
the authors share an implicit vision of what their novel will be. This is not
to say that this shared pre-understanding determines the precise structure
and exact words and plot of the novel, or that the authors agree on every
detail. The fact that they must draw lots to determine their order69 suggests
an inevitableness to their project (e.g., that their degree of choice is alwaysalready limited). Also, Dworkin's choice of the word "engaged" suggests
that texts in the chain enterprise are produced by labor, for specific purposes.
Dworkin's notion that the writers in the chain enterprise alwaysalready share a prior understanding of their particular genre resembles
Fish's notion of interpretive communities. Fish's theory of interpretation
presumes that knowledge is a social construct, and Fish challenges the idea
of knowledge as a set of external, scientifically verifiable truths.7" Readers
do not read in a vacuum: instead, culture and history positions readers, and
deeply affects how readers interpret texts.7' Thus, meaning is a function of
interpretative conventions internalized by readers as members of a particular interpretive community. Members of an interpretive community share
strategies and conventions which are valued by the group.' Such interpretive strategies pre-exist the actual reading, and "therefore determine the
shape of what is read rather than, as it is usually assumed, the other way
around." Strategies of interpretation are not inherent in texts or in language, but instead "inhere in an institutional structure... [containing] certain assumed purposes and goals."74 Thus, interpreters are not only constrained by the rules of language, but also (and more importantly) by institutional discourses and assumptions (which themselves structure the rules
67. This is not to suggest that there is absolutely no conflict amongst these authors. See Infra
discussion in Part IV of this Comment on conflict/cohesion of interpretive communities.

68. Terry Eagleton, discussing the structuralist movement, observes that "[mleaning was not a
'natural', a question ofjust looking and seeing, or something eternally settled; the way you interpreted
your world was a function of the languages you had at your disposal, and there was evidently nothing
immutable about these." EAGLETON, THEORY, supra note 7, at 93.
69. Dworkin, Natural,supranote 10, at 167.
70. See'EAGLErON, THEORY, supra note 7, at 74-75.

71. Seeid.at72.
72. Stanley Fish, Interpretingthe Variorum, in Is THERE A TEXT INTHIS CLASS?: THE AUTHORITY
OF INTEPPRETrIV COMMUNmES 147, 171 (1980) [hereinafter Fish, Variorum]. Fish argues that

"[i]nterpretive communities are made up of those who share interpretive strategies not for reading (in
the conventional sense) but for writing texts, for constituting their properties and assigning their Intentions." Id.
73. Id.
74. Fish, Is There a Text in this Class?, in Is THERE A TEXT INTHIS CLASS: THE AUTORITY OF


of language). For example, in UnitedStates v. Lopez, the majority, concurrences, and dissents may disagree about whether or not the Commerce
Clause grants Congress power to pass the Gun-Free School Zones Act of
1990, but each of their arguments is framed by similar conventions that
judges both consciously adopt and unconsciously internalize by being
members of the judicial community. Although each judge reasons differently, each judge shares strategies of reading and interpreting which affect
how they will "read" Lopez. Each judge agrees that she or he must explain
Lopez by reconciling it with or distinguishing it from previous cases interpreting the Commerce Clause. 6
Fish's notion of interpretive communities helps explain how different
readers can derive the same meaning from a text because they have learned
and/or internalized the same interpretive strategies.77 Texts themselves are
not embedded with fixed meanings awaiting discovery; instead, members
of interpretive communities sharing interpretive presuppositions and
strategies read texts in similar ways and derive similar meanings. This
imposes an apparent stability, at least provisionally, on reading and interpretation.7' Later authors in the chain enterprise can construct texts arguably coherent with previous texts because earlier and later authors belong to
the same interpretive community (which changes over time but possesses
recognizable foundations). Therefore, interpretive communities rescue
texts from being "completely random" and subjective, and enable people to
communicate.79 But while interpretive communities may save texts from
being random, the communities themselves are not completely stable because they "are not natural or universal, but learned.""SO
Likewise, in the legal arena, judges, lawyers, and students bring agendas to the legal documents they read and write. For example, how a law
student interprets the classic property case Pierson v. Post' reveals something about the individual's ideological assumptions. Generally, one may
argue that the investor who devoted time and labor to chase the fox should
be awarded ownership rights, or one may contend that the competitor who
actually captured the fox should be the lawful owner (and that the investor
should not be rewarded for inefficient chasing).' Whatever option one

75. 514 U.S. 549 (1995).

76. See infia Part IV.C for discussion and examples.

77. Fish, Variorum, supra note 72, at 171. Note that Fish's notion of interpretive communities is
confusing, because he does not clearly define or explain it.See infra Part IV for a discussion and
criticism of Fish's interpretive communities.
78. Id. at 171-72.

79. Id. at 172.


3 Cai. Cas. 175 (N.Y. 1805).
[ do not mean to suggest that these are the only ways to read Pierson v. Post, rather I am just
an example as to how alternative readings reflect alternative ideologies. For insightful sugges-

tions of different readings ofPierson v. Post, see PAUL & FISCHL, supra note 58, at 171-80 (1999).


[Vol. 33:1099

chooses implicitly reflects assumptions on how competition and markets

do or should operate. Likewise, how one interprets United States v. Lopez
may reveal one's views of federalism and the proper relation between the
federal government and states. There is nothing "natural" about how we
interpret; instead, knowledge has its "source in culture and history" and is
thus artificial. 3 Interpretation may seem "natural" because interpreters
internalize interpretive strategies. Thus, "already-in-place interpretive constructs are a condition of consciousness."" According to Fish, the reason
that different people arrive at similar interpretations is not because such
meanings are inherent in the text, but because interpretation is a community act, and because individuals belonging to the same interpretive community implicitly share strategies of reading." Thus, a reader's interpretation is never unique because it always-already exists in the interpretive
community. Fish further asserts that ways of perceiving and categorizing
the world and texts are "the content of the consciousness of community
members who were therefore no longer individuals, but, insofar as they
were embedded in the community's enterprise, community property."86
Part IV of this Comment will consider some criticisms of Fish's interpretive communities.
Fish argues that interpretive community members produce interpretations which are neither objective nor subjective: they are not objective because the aim of a particular interpretive community is "interested rather
than neutral," and they are not subjective because whatever meanings an
interpretive community constructs "do not proceed from an isolated individual but from a public and conventional point of view."87 Different people may produce similar meanings of a text not because that meaning is
objectively correct or natural, but because "members of the same [interpretive] community will necessarily agree because they will see ... everything in relation to that community's assumed purposes and goals."88 Ultimately, what we define as text, reader, and author are not the goals of
interpretation, but are the very "productsof interpretation."89 The reader is
not an "independent agent" who merely expresses unique personal opinions, but instead is molded and governed by a particular interpretive com-

83. Stanley Fish, DennisMartinez and the Uses of Theory, 96 YALE L.J. 1773, 1783 (1987).
84. Id. at 1795.
86. Id.
87. FISH, Introduction,supra note 7, at 14.
88. Id. at 15 (emphasis added). I emphasize the word necessarily to highlight one of the main
problems with Fish's theory-he does not acknowledge the inherent tensions and struggles within any
given interpretive community, but somehow suggests that the community idealistically shares a unified
vision of interpretation. See infra Part IV for a more detailed discussion of Fish's shortcomings.
89. Id. at 16-17.



munity, whereby his strategies are "community property." An individual

interprets a text not only by consciously using strategies learned in an interpretive community, but by reflexively employing strategies she has internalized from the interpretive community. What may at first appear to be
a relative, subjective opinion may be seen as reflecting (and also reconstructing) substantive principles and analytical strategies of the interpretive
According to Fish, interpretive communities are comprised of "those
who share interpretive strategies not for reading but for writing texts, for
constituting their properties .... [T]hese strategies exist prior to the act of
reading and therefore determine the shape of what is read rather than, as it
is usually assumed, the other way around." ' In other words, a reader of
literature does not look at a splatch of words on a page and determine that
the words are a poem: rather the reader's always-already interpreted notion
of what a poem is guides the reader to categorize the marks on the page as
poem or not-poem.' Because readers and authors always-already think
within conventions and purposes of a shared enterprise, whatever meanings
they find in a text belong to a range of interested meanings "preselected by
their professional training."9 3 Interpretive communities allow agreement
and disagreement over what texts mean, and do not presuppose that all
members will necessarily share the same point of view, but rather that they
all categorized experience in the same way.' For example, in Lopez even
though the majority, concurrences, and dissents disagree about the proper
resolution and rationale of the case, they implicitly rely on the same chain
of legal history and interprefive conventions (reconciling and distinguishing cases, applying law to facts) to make their arguments.
In the legal arena, law schools serve to train students how to "think like
lawyers," and in this sense form the foundation of interpretive communities. However, the interpretive community is never monolithic."5 Different
law school classes might have different underlying agendas (regardless of
whether they use the same casebook), regardless of what the professor's
conscious goals are. For example, Joseph Singer's PropertyLaw casebook
juxtaposes nontraditional views of property rights with traditional materi90. Id. at 14.
91. Id.
92. Fish shares a telling story about how our expectations and assumptions influence how we read

texts. One summer he taught a class on seventeenth century religious poetry immediately after a class
on linguistics and literary criticism. One day he left a list of linguists' names on the blackboard, and

asked the unsuspecting poetry class to interpret the "poem" on the board. Fish argues that
"rt]nterpreters do not decode poems; they make them." STANLEY FISH, How to Recognize a Poem
93. FISH, Fish v. Fiss,supra note 42. at 133.
94. FISH, Change,supranote 85, at 141.

95. Part IV will engage in an extended criticism of Fish's notion of interpretive communities.



[Vol. 33:1099

als.96 Rather than viewing private ownership of property as a natural given,

Singer's casebook contains cases which challenge his readers to confront

the inherent tensions and internal contradictions in private property rights. 9

Singer balances cases reflecting the majority view of property rights with
provocative cases reflecting the minority view.98 Students who read the
book may, or may not, be aware of the casebook's perspective, and students who read the book may embrace, reject, or be indifferent to the casebook's perspective. Not everyone who reads the book will automatically

be in the same interpretive community, but having read the book and having been through a particular property course, most students in the class
will internalize some fundamental interpretive notions of property rights,
and such students might, for example, approach a takings problem in a
different way than students who learned from another professor using another casebook, or even from another professor using the same casebook.
Law schools construct general interpretive communities not only by
indoctrinating students to think like lawyers but also by exposing students
at diverse law schools throughout the country to the same cases and similar
legal principles, through the use of casebooks. In this way, law schools
indoctrinate students to think in a particular way, in order to reproduce the
status quo of the law. Just as in literature, in legal studies there are heated
debates about what constitutes the legal "canon."" J.M. Balkin and Sanford Levinson acknowledge that because different participants in legal discourse have different goals, it is problematic to assume that there is a definitive legal canon." They observe that casebooks function like literary
anthologies, where editors make conscious choices about what texts to
exclude and include, and where such choices affect how students internal-

97. Id. For example, Singer includes cases such as Local 1330. UnitedSteel Workers ofAmerica V.
U.S. Steel Corp., 631 F.2d 1264 (6th Cir. 1980), which raises the question whether individuals should
have property rights, akin to prescriptive easements, in their jobs. SINGER, supra note 96, at 1178,
Singer also challenges his readers to think about the socio-cultural construction of property
rights, through cases such as Nome 2000 v. Fagerstrom, 799 P.2d 304 (Alaska 1990), an adverse possession which compares Native Alaskan views of ownership with traditional legal views of ownership.
SINGER, supranote 96, at 136, 140.
98. For example, Singer includes minority view cases. See, e.g., Uston v. Resorts Int'i Hotel, Inc.,
445 A.2d 370 (N.J. 1982); SINGER, supra note 96, at 196, 201, and Southern Burlington County,
NAACP v. Township of Mount Laurel, 336 A.2d. 713 (N.J. 1975), SINGER, supranote 96, at 664,673.
His casebook challenges readers not to just memorize sterile property holdings by rote, but to be able to
use cases as tools to solve problems.
99. See Francis J. Mootz Ill, Legal Classics: After Deconstructing the Legal Canon, 72 N.C. L.
REV. 977, 981 (1994) (contending that "the canon debate is a concrete manifestation of the deeper
destabilization wrought by critical, deconstructive, and postmodern approaches that already influence
legal theory"); J.M. Balkin & Sanford Levinson, Commentary: The Canons of ConstitutionalLaw, I l I
HARv. L. REV. 963, 969 (1998) (noting that debates about the canon "are part of more general forms of
ideological and cultural development and struggle").
100. Balkin & Levinson, supranote 99, at 970.




ize their understandings of law.''

Although Fish's concept of interpretive communities investigates how

different individuals share similar ideologies and strategies to write and

interpret texts, Fish does not account for how individuals' prior political
and intellectual dispositions affect how they position themselves within an
interpretive community. Just as the first author does not write on a blank
slate free of presuppositions about genre, neither do individuals enter interpretive communities with blank minds uncontaminated by culture, history
and experience. For example, students do not enter law school unblemished with ideas about property and development rights, or untainted with
ideas about the tension between federal and state governments. Whatever
prior understandings a student has about such issues will have an impact on
how that student fits within a legal interpretive community. In addition,
Fish does not consider how individuals not trained in law (and hence who
do not belong to the interpretive community) can make comprehensible
contributions to the legal arena." z
Interpretive communities allow us to perceive how individuals are able
to communicate within a shared enterprise, and to understand how different
individuals may read a text in the "same' way. However, interpretive
communities are more complex than Fish envisions them, and Part IV will
explore their ambiguities and problems. But first, we will examine the
problems of an overly narrow view of authorial intention, which impedes
the chain enterprise analysis just as an overly simple vision of interpretive
communities impedes Fish's analysis.
C. AuthorialIntention
Today, debates regarding authorial intention and strict constructionism
are plentiful in legal scholarship and judicial interpretation. Whereas
Dworkin too narrowly equates authorial intention with originalism, Fish
too broadly conflates intention as always-already imprisoned by interpretive communities. On the one hand, originalists claim that understanding
the Constitution requires discovering the Framers' intentions, and originalists believe that such intentions may be objectively discovered." On the
other hand, nonoriginalists contend that interpreters must look past the
Framers' intentions, and look to social, historical, and political factorsbecause times change, the Constitution should not be regarded as a dead
text with fixed meaning, but as a flexible and dynamic text which can adapt

to meaningfully solve present conflicts."t

Just as interpretive communities are social and historical products,

101. Id.at972-73.
102. For example, Fish himself is not formally trained in law, yet he can communicate with lawyers

and engage in a rational critique of legal theory and the legal arena.
103. LANE, supra note 43. at 275.
104. Id.



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every text is intentional, in the sense that texts (outside of the context of
maybe the X-Files) do not happen by accident: texts are written intentionally by individuals, and do not spontaneously appear105 Texts are produced by someone's labor. The fact that Dworkin's chain enterprise authors are "engaged" in labor," and are writing for a specific purpose, illustrates the intentional trajectory implicit in the chain enterprise. In addition,
readers and interpreters have intentions that affect how they read a particular text. Dworkin and Fish each consider the issue of authorial intent, and
agree that meaning cannot be reduced to the author's intent. It is often
impossible to discern original intent because as time marches on, new
modes of discourse arise, and changes between the past and present "mediate" how a later judge reads an earlier intention (of an earlier judge, of a
statute, of a constitution)." 7 Dworkin criticizes authorial intention because
it is difficult to pinpoint intention, and because focusing on intention privileges subjectivity over historical facts.'" For example, Dworkin writes that
interpretation has value only when it is severed from "associations with
speaker's meaning or intention."'" Dworkin further contends that whereas
intention is private and subjective, interpretationis a "public institution." D
According to Dworkin, a text can be "detached" from authorial intention and treated as "an object in itself.""' But how can a text be a detached
object, severed from history, the labor of production (intention), or interpretation? Furthermore, Dworkin believes that authors create texts with
the intention that the text be considered apart from the author's intention,
either aesthetically or politically."' In other words, he believes that reducing meaning to authorial intention wrongly fixes meaning to the moment
the text was created, rather than allowing readers and later authors to construct meaning through interpretation.' 3 However, Dworkin problematically assumes that there is some fixed authorial intention that can be construed independent of interpretation, and that the author's real intention
waits to be discovered. Dworkin also does not see how what an interpreter
identifies as authorial intention of an earlier work necessarily changes over
105. W. K. WIMSATF, JR. & MONROE C. BEARDSLEY, The Intentional Fallacy, In THE VERBAL
ICON 4 (1954). Wimsatt and Beardsley argue that although a poem, for example, does not exist by
accident (because someone writes it), authorial intention should not be the sole standard to judge the
poem. Id. In addition, even a sleepwalker who writes a text does not write a spontaneously-appearing
text, because he is guided by his subconscious intents.
106. Dworkin, Natural, supra note 10, at 166.
107. David Couzens Hoy,Interpreting the Law: Hermeneutical andPoststructuraiistPerspectives,
58 S. CAL. L. REV. 135, 141 (1985).
108. See Dworkin, Interpretation,supranote 10, at 250-51.
109. Id. at 251.
110. Id. at 257.
II1. Id. at 260.
112. Id. at 261.
113. Id. (recognizing that the assignment of intention is an act of interpretation, but finding such an
act problematic).




time, because the chain enterprise mediates how we interpret earlier works.
An interpreter's interpretation of the Commerce Clause, even if he immerses himself in history contemporary to when the Commerce Clause was
constructed, will be affected (tainted, if one is cynical) by the past two centuries--discovering an objective intention is thus impossible. Dworkin
also objects to authorial intention because, in the chain enterprise, "at least
for all novelists after the second, there is no single author whose intentions
any interpreter can, by the rules of the project, regard as decisive.""'4 Part
of the reason Dworkin rejects intentionalism as a viable theory may be
because his conception of intentionalism is too narrow and confining." '
Dworkin too easily reduces authorial intention to originalism, and he too
readily believes that intentionalists impose their own beliefs on the author's
intention."6 However, he does not go so far as to say that the author's intent is never relevant."' Assigning authorial intention is complex because
it "requires a fresh exercise of interpretation which is neither brute historical research nor a clean-slate expression of how things ideally ought to
be.""' Dworkin's own natural law theory, whereby the author looks to fit
and justification, provides for interpretation to identify earlier authors' intentions." 9
Fish proposes a different vision of authorial intent. Whereas Dworkin
tries to establish an aesthetic realm detached from author's intention, Fish
contends that intention is always-already interpretation.' 0 Any materials
used to help us identify authorial intent (for example, the autobiography of
a judge or the legislative history of a statute) are themselves texts open to
interpretation.'' In addition, whether we like it or not, words have meanings independent of intention, and these meanings may change over time.
Thus, it is always possible to attribute a meaning to a text, and even to an
author's intention, that an author may not knowingly have intended.
Rather than being a flaw in interpretation, the instability of authorial intention is a critical component of interpretation and reminds us that meaning is
not fixed or stable, but involves conflict and struggle.
Fish ostensibly salvages intention from being "private property" by ar114. Id.
at 263.
115. See Lane, supra note 43, at 276.
116. Id.
117. Dworkin thinks that the author's intention is relevant to solve certain questions of ambiguity.
for example, what "Shakespeare meant by 'hawk' as distinguished from 'handsaw,'" )etseeking author's intent is not appropriate to find out "whether Shakespeare thought Hamlet was sane or a madman
pretending to be mad in order to decide how good a play he wrote." Dworkin, Interpretation,supra
note 10, at 259.
118. Id.at268.
119. Lane, supra note 43, at 277.
120. FISH, Wrong, supranote 10. at 118.
121. See WiMsATr & BEARDSLEY, supra note 105, at 16 (considering how notes from T.S. Eliot
about his poems are not "external indices to the author's intention," but instead should be analyzed and
interpreted like any other text).



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guing that "any intention one could have will have been stipulated in advance by the understanding of what activities are possible to someone
working in the [chain] enterprise."'" Thus, there is no such thing as private intentions, but only interpretive community/chain enterprise intentions.'" Rather than totally discarding intention, Fish embraces a specific
type of interpretive intention. Instead of conceiving of authorial intentions
as "unique psychological events," Fish sees authorial intentions as "forms
1' 24
of possible conventional behavior that are to be conventionally 'read.' s
Ultimately, to Fish, just as interpretation always-already precedes any textual production or analysis, so does intention; he ultimately connects interpretation and authorial intention, noting that "intention like anything else is
an interpretive fact."'' 25 Fish's choice of the word "fact" tells us that intention is, like any other "fact", something to be construed by the interpreter.
Yet Fish does not distinguish intention from any other interpretation, and
one of the flaws in Fish's theory is his failure to distinguish different types
or levels of interpretation.
For example, in United States v. Lopez, not only do the various judges
disagree on the legal rationale, but they also disagree on the role of intention. " In the majority opinion, Chief Justice Rehnquist cites to James
Madison's The FederalistNo. 45, which says that "[t]he powers delegated
by the proposed Constitution to the federal government are few and defined."' 27 He also notes that "[tihe Gibbons court ... acknowledged that
limitations on the commerce power are inherent in the very language of the
Commerce Clause."' 28 He argues that Jones & Laughlin Steel points out
that "the scope of the interstate commerce power . . . 'may not be extended,"" 2 9 and that "Congress' authority [should be] limited to those
powers enumerated in the Constitution.""' Rehnquist looks to earlier intent of the Framers and previous Courts to find support for the claim that
federal power should be limited. In contrast, Justice Kennedy's concurrence focuses on the importance of federalism, and Kennedy argues that
'Judicial restraint" is necessary when the Court engages in the "judicial
struggle to interpret the Commerce Clause during the transition from the
economic system the Founders knew to the single, national market still
emergent in our own era.""' Kennedy does not reduce intention to originalism, and acknowledges that technological advances which were not

Fish, Chain, supra note 10, at 563.

Id. at 564.
Id. Fish asserts that "one cannot read or reread independently of intention." Id.
514 U.S. 549 (1995).
Id. at 552.
Id. at 553 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90 (1824)).
Id. at 557. (quoting NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37 (1937)).
Id. at 566.
Id. at 568 (Kennedy, J., concurring).




"self-evident" to the earlier Court interpreting the Commerce Clause have

resulted in a neither "coherent [n]or consistent course of interpretation."'"
Justice Thomas's concurrence is the most strict originalist opinion
(exemplifying what Dworkin rejects in authorial intent theories), and Thomas argues that "our case law has drifted far from the original understanding of the Commerce Clause," and that future decisions should be "more
faithful to the original understanding of that Clause.'" However, Thomas
fails to explain exactly what the "original understanding" is, or how he can
objectively know original understanding and Framer's intent. Breyer's
dissent focuses on the intent in precedent cases to consider the cumulative
effects of a single, seemingly trivial and isolated action, on interstate commerce." Souter's dissent examines the Court's traditional intent to "deferol to rationally based legislative judgments."'3 Finally, Stevens' dissent
argues that original intent should be subordinated to today's intent and
needs: "Whether or not the national interest in eliminating that market
would have justified federal legislation in 1789, it surely does today."'3
The various conceptions of intention in Lopez illustrate that authorial
intention does not simply reduce to purely private thoughts, but involves
interpretation and public contestation. Authorial intention cannot be separated from interpretation and is a critical part of legal interpretation-an
important part of deciding Lopez hinged on how the various Justices interpreted intention (such as whose intention matters?). While Fish attacks
Dworkin's vision of authorial intention as an author's private property,
'Fish's interpretive communities themselves are private and alienating, as
Part IV will discuss. Instead of seeing interpretation and the construal of
authorial intention as something public and shared, Fish sees it as something possessed by interpretive communities, whose members Fish concedes cannot even identify each other.' This alienation starkly contrasts
with the proclamation, in the literary criticism arena, that the text belongs
to neither the critic nor the authors, but belongs to the public, and is embodied in the heterogeneous public languages' (not imprisoned in the sole
language of a privileged interpretive community).
D. Constraintson EarlierandLaterAuthors: Distillingor Dispersing?
Another contested issue in the Fish-Dworkin debate is the constraints
on earlier and later authors. While Dworkin argues that the law "works
itself pure" over time and that later authors face more constraints than ear132.

Id. at 584 (Thomas, J.,
Id. at 616 (Breyer, J.,
Id. at 604 (Souter, J.,
Id. at 603 (Stevens, J.,
FISH, Varorium, supranote 72,at 173. See discussion supra Part IV.B.
WIMsATT& BEARDSLEY, supra note 105, at 5.



[Vol. 33:1099

lier authors,'39 Fish argues that later authors do not come any closer to
truths than earlier authors, and that regardless of position on the chain, all
authors are equally free and constrained."4 According to Dworkin, later
authors have less freedom, because each prior decision binds them more
tightly to the funneling effect of precedent. 4' Over time, as authors work
toward the "best" possible meaning, interpretation becomes more finetuned and pure.' 42 If, as Fish argues, interpretations cannot be totally
unique because they are always-already embedded in interpretive communities, then each author in the chain is equally constrained by belonging to
a particular interpretive community. Because ideas do not spontaneously
arise but are dependent on the interpretive community, earlier and later
authors face similar constraints.
As previously discussed, Dworkin's chain enterprise requires the judge
to look back to history and to look ahead to formulate the best political
justification of his decision. 43 The judge's reliance on legal precedent
helps to ensure that the judge does not engage in unbridled subjectivity.'"
Dworkin argues that "the brute facts of legal history will.., limit the role
[that the judge's background and moral] convictions can play in those decisions."'45 At the same time, Dworkin allows room for the judge's creativity: "A naturalist is charged with discovering and enforcing the best interpretation of his community's political structure and past decisions, but the
interpretation he believes best may be... interpretation that has occurred
to no one else."' 46 Dworkin's mention of the "brute facts" and the "discovering" of interpretation does not necessarily reduce to positivism, as Fish
charges.'4 7 It is problematic to automatically accuse anyone speaking of
"brute facts" as being an essentialist or positivist: for example, it is a brute
fact of history that over six million people died during the Holocaust.
Likewise, the various judges in Lopez had to deal with the brute facts of
previous Commerce Clause decisions, just as future Commerce Clause
decisions will have to reconcile or distinguish Lopez. But having to position a later decision in the context of Lopez (and the previous history of the
Commerce Clause chain of precedent) does not compel a particular interpretation of the "fact" of Lopez. Although the existence of such casesWickard, Gibbons, etc.-may be facts, the meaning of the cases (and
whether or not they are relevant to a later case) is far from brute fact, as the
139. RONALD DWORKIN, Law Beyond Law, in LAW'S EMPIRE 400-13 (1986) [hereinafler DWORKIN,
Beyond Law].
140. Fish, Chain, supra note 10, at 555.
141. Dworkin, Natural,supra note 10, at 167.
142. Id.
143. See discussion supra Part II.A.
144. HART, supra note 23, at 126.
145. Dworkin, Natural,supra note 10, at 169.
146. Id. at 184.
147. FISH, Wrong, supra note 10, at 112.



splintered majority, concurrences, and dissents of Lopez illustrate.

Dworkin's use of the word "discover" does not necessarily mean that the
judge discovers objective meaning, but may also mean that discovery is a
creative act that occurs when the judge reconciles fit (synthesis of the chain
enterprise) with political justification.
However, Dworkin's vision that the law works itself pure fails to recognize that because no two cases are identical, each "later" case introduces
new facts, which the judge must reconcile and distinguish with precedent.
The Herculean judge trying to work law pure must always battle with impurities introduced by new facts and changing social circumstances, which
slowly change the assumptions held by interpretive communities. The
presence of new facts challenges the judge to look back and reinterpret
precedent in light of the additional facts. Law does not develop in a vacuum, as an abstract theory, but must respond to the changing contexts of
specific and unique material facts. In other words, precedent does not remain the same, but it always changes, because what may have held "true"
for one set of facts may collapse under different facts. Because interpretation is historically constituted, a judge interprets the past in light of the
present-the judge cannot separate (or cleanse) himself from his present
interpretive presuppositions, and his present understanding of the Commerce Clause, for example, will affect how he reads previous Commerce
Clause cases. The particular facts of a specific present conflict may cause
the judge to read precedent through a different lens than ever before, and
focus on different language and arguments of precedent.
In contrast to Dworkin, Fish recognizes that the law does not work itself pure over time. Fish does not believe that law improves over time and
progresses towards an objectively correct answer. Furthermore, Fish argues that earlier authors and later authors both face constraints imposed by
the interpretive community. For Fish, there are two types of constraints:
formal and substantive constraints. Both earlier and later judges are formally constrained by what counts as a judicial opinion, or the conventions
of the chosen genre.
For example, after Lopez, Supreme Court justices dealing with Commerce Clause issues will have to deal with Lopez. On the one hand, this
imposes additional constraints, because a (responsible) judge is not free to
ignore precedent. On the other hand, Lopez provides new tools and ways
of seeing which judges may use to decide cases. In Lopez, the majority
adds the "substantially affects" test"1 This language and interpretation
may enable a later judge to interpret the Commerce Clause chain in a way
that he may not have previously conceived-reading earlier cases in the
context of Lopez may trigger a judge to see something "nev" in the chain
enterprise. Lopez provides additional analytical tools because the decision
148. United States v. Lopez, 514 U.S. 549,559 (1995).


[Vol. 33:1099

was hotly contested with the Court: laterjudges interpreting the Commerce
Clause may "discover" provocative arguments in the margins (concurrences, dissents) of Lopez. While the concurrences and dissents are not
binding precedent, they offer different interpretive visions, which may enable later judges to perceive the Commerce Clause in a different way.
Therefore, over time, the constraints do not tighten-precedent simultaneously constrains and offers the possibility of "new" interpretations.
Originalism or strict textualism will not prevent "new" subjective interpretations, because what one considers original intent or plain meaning is an
interpretive act mediated by history. Judges today will see the Commerce
Clause differently from judges two centuries ago, and today's judges cannot wipe their slates clean and forget their legal history and historicized
present, no matter how intensely they immerse themselves in the Framers'
contemporary history and culture.
Dworkin's chain enterprise theory assumes that there is progress in legal adjudication, and that later decisions somehow refine precedent. In
contrast, Fish finds no progress or right answer, he just finds endless debate
(within the finite number of interpretive possibilities rendered possible by
the interpretive community). Dworkin's theory is useful because judges
must come to an answer to resolve disputes, and a good judge will construct an answer which he finds "best" (whatever he means by best). Unlike a literary critic, a judge cannot merely revel in the indeterminacy of
meaning. She must reach a final decision. Dworkin's theory is most vulnerable where he argues that there is a "best" answer that the chain enterprise progresses to find; Dworkin does not clearly define what he means by
"best," and does not clearly account for the fact that different judges may
have different ideas of what is "best." Different visions of what is best
may be seen as politically and morally justified, depending on one's ideology and social values. On the other hand, while Fish recognizes that there
is no objective "best" answer, he does not give any direction for a judge to
discern which decision is better. Unlike literary critics, judges must make
Therefore, the chain enterprise continues because authors (judges)
share conventions and strategies about what it means to write a judicial
opinion. However, as Part III has illustrated, the relationship of earlier and
later texts and the significance of authorial intention depend on prior assumptions that interpreters bring to texts. Although Fish's notion of interpretive communities attempts to explain how different individuals can
agree upon interpretations (because they share interpretive presuppositions), his interpretive communities do not fully explain the continuity of
the chain enterprise. Part IV will focus on criticisms of Fish's account of
interpretive communities.





Fish offers valid criticisms of Dworkin's theory: Dworkin does not explain what he means by "best" answer; Dworkin wrongly contends that the
constraints strengthen over time; Dworkin errs in separating intention from
interpretation; Dworkin naively believes that law works itself pure over
time. 49 However, Fish's theories present their own set of problems, and
this section will consider some criticisms of Fish, including problems of
relativism and indeterminacy of meaning, problems of individual autonomy within interpretive communities, and fundamental problems of defining interpretive communities. This section will also explore how Dworkin's theory responds to these problems.
A. Determinacyand Privilege
As discussed earlier, Fish strongly criticizes Dworkin for embracing
"pure objectivity" (that meanings are "just there" awaiting discovery) and
"pure subjectivity" (that meanings are "made up" by an unconstrained
He contends that while Dworkin claims to forge a middle
ground, he ultimately falls prey to what he seeks to avoid: pure objectivity
and subjectivity. However, at times Fish oversimplifies Dworkin's argument to serve his own interpretations. For example, Fish exaggerates
Dworkin's distinction between the first author and later authors, and trivializes Dworkin's acknowledgment that the first author writes within the
constraints of the genre (chain novel, legal opinion). As much as Fish attacks Dworkin for wanting it both ways, one could identify a similar fallacy in Fish's argument: to Fish, meaning is indeterminate because there is
not one overarching correct answer and there is no definitive way to evaluate the "best" answer, but meaning is also predictable and determinate because interpretive communities prescribe limited options to judges.' Just
as Fish attacks Dworkin for dancing on both sides of the objective/subjective fence, Fish dances on both sides of the determinate/indeterminate fence. While discourse and ideology structure how
judges think, Fish takes this to the extreme with his narrow and rigid conception of how interpretive communities conscript and constrain their
Although Fish's theory of interpretation appears to give the reader
power (because meaning is not inherent in the text but is constructed by the
reader, who rewrites the work via interpretation), Terry Eagleton criticizes
Fish for privileging a certain type of reader. "the readers in question are
149. See discussion supra Part I.B.
150. Fish, Chain, supra note 10,at 552.
151. See Hamish Stewart, Is Judgment Inscrutable?, 11 CAN. J.L & JURIS. 417, 426 (1998) (arguing

that for Fish, "scholarship is irrelevant to politics" and that Fish sees "no progress in shifting from one
context to another, because all contexts have the same shape").



[Vol. 33:1099

'informed' ... readers bred in the academic institutions, whose responses

are thus unlikely to prove too wildly divergent from each other to forestall
reasoned debate."' As much as Fish criticizes Dworkin for believing that
there is an ultimate objective "best" answer, Fish succumbs to a similar
type of determinism by his elite conception of interpretive communities
whose members are totally determined and thus lack any significant autonomy. In addition, Fish does not consider how individuals lacking institutional legal training can contribute to the legal arena-in other words, how
people lacking a legal education and without access to legal discourse can
meaningfully participate in law. Fish's interpretive communities try to
explain away any tension and conflict and difference, instead relegating
pseudo-power to those who conform to the narrow parameters of his mysterious and ill-defined interpretive communities.
Furthermore, although Fish rightfully points out that literary critics and
judges face different pressures-literary critics are encouraged to find multiplicity of meaning in a text, whereas judges must seek a unified and coherent interpretation 53 -he fails to provide more than a description, and
does not propose any solutions for judging. Whereas Dworkin attempts to
provide some direction to judges, Fish merely criticizes, without considering the practicality of his criticisms within the constraints judges face. As
discussed previously, while literary critics can celebrate indeterminate multiplicities of interpretation and write texts that do not present coherent solutions to specific problems, judges must resolve specific material problems
that have an immediate impact on real people. While different modes of
interpretation will always be open to debate, judges must consciously or
subconsciously choose a mode of interpretation in order to decide a case.
Dworkin's notion of fit and justification acknowledges the real pressures
that judges face, whereas Fish only recognizes abstract ideas about endless
political debate. Although Fish's observations about interpretive presuppositions are important, they do not help solve the problem of how a judge
must determine and justify a "best" answer at a specific moment to solve a
specific problem.
B. Alienation,Anonymity, and Interpretive Communities

Another pitfall in Fish's theory is that he never clearly defines what he

means by interpretive community, how its members are identified, and how
an interpretive community derives any power."u Even though Fish purports to recognize the social construction and public properties of language, he problematically imposes an alienation onto members of an interpretive community, arguing that one cannot know whether he belongs to
152. EAGLETON, THEORY, supra note 7, at 74.
153. See supra Part It.B.
THE TEACHING OF ENGLISH 149, 153 (1985).



the same interpretive community as anyone else.'15 Fish reasons that one
cannot know because "any evidence brought forward to support the claim
would itself be an interpretation."' 5 Rather than affirming any community,
Fish's interpretive communities resemble prisons of alienation. In fact, he
describes his interpretive communities as secret membership clubs: "The
only 'proof of membership is fellowship, the nod of recognition from
someone in the same community, someone who says to you what neither of
us could ever prove to a third party: 'we know.""' Here, Fish suggests
that members simultaneously can and cannot identify each other, and that
people will only agree if they already agree-he does not allow space for
individuals to consciously change their minds. The only community is
unspoken and implicit, incapable of material proof and affirmation and
mutual recognition. Fish's description of interpretive community members
unable to identify each other reveals the disparate alienation that Fish at
other times claims that interpretive communities seek to avoid. If interpretive communities should provide comfort because they are public enterprises, what sort of solidarity and community can members really forge if
they are unable to identify other members? And if other members cannot
be identified, how are interpretive communities really communities (in any
positive sense)?
Although on the surface Fish's interpretive communities embrace public and communal values, Fish fails to put his concept of interpretive communities in a clearly explained social context.'58 While he acknowledges
the social construction of language and meaning, he does not explain how
interpretation is part of social practices;' 59 his work is flawed by his "unproblematic 'naturalness' of legal interpretation.""W While Fish criticizes
Dworkin for supposedly arguing that objective facts and truths lie waiting
to be discovered, Fish subscribes to a different kind of naturalism: members of interpretive communities internalize ideologies and strategies of
organizing and interpreting the world (they do "what comes naturally"),
and ultimately cannot control how they interpret (both write and read)
texts. Fish's mantra that everything is always-already interpreted fails to
consider how conscious human agents can take responsibility to comprehend their pasts and to shape their presents and futures. Problematically,
Fish never explains exactly what it is that members of interpretive communities share.16' Fish's theory presumes that individuals in interpretive
155. FISH, Varorium, supra note 72, at 173.
156. Id.
157. Id.
158. See Andrew Goldsmith, Is There Any Backbone in This Fish? Interprelne Communities. Social
Criticism and Transgressive Legal Practice, 23 LAW & SOC. INQUIRY 373.387 (1998).
159. See id.
160. Id. at 387 n.27.
161. Id.at388.



[Vol. 33:1099

communities have "inherited" ideas in a way that does not allow for "conscious reflection," and his notion of interpretive communities is ultimately
a sort of "interpretive prison-house"'--there is no way out because one
cannot transcend discourse and stand above the interpretive community
(because any act of stepping out of the interpretive community is itself an
act of interpretation), and there is no way into the community because one
cannot identify who already belongs.
While Fish correctly recognizes that meaning is created within boundaries of discourse and within prior cultural/social constraints, his cultural
determinism does not allow for conscious individual choice and responsibility" and does not allow for any meaning beyond discourse. Although
Fish admits that "interpretation is a form of authority, since it is extension
of the prestige and power of an institution,"'" he does not explore issues of
authority implicit in his interpretive communities. For example, law is
largely a self-regulating field, and is a powerful institution that defines
laws and rules by which millions of people, not privy to the power of the
legal arena, must abide. Fish's concept of interpretive communities does
not account for how lawyers and judges interact with people in 'other' interpretive communities-for example, environmental engineers, politicians, grass roots activitists-and does not account for overarching public
shared beliefs-for example, concerns for our environment, public safety,
and human rights. 65
In contrast, Dworkin's chain enterprise theory recognizes a conscious
community (those engaged in the chain enterprise), and perceives judges as
active agents capable of making choices, albeit within the boundaries of an
always-shifting history. Although Dworkin's theory is limited by his belief
that over time, the law works itself pure and that the constraints become
less tight as law progresses," 6 his theory potentially allows for active human agency and choice.
C. IsolatedAutomatons Cryogenized in History?
Terry Eagleton elaborates further on another significant flaw in Fish's
interpretive communities. 67 Eagleton complains that Fish conceives the
individual as an acquiescent automaton, a "helplessly determined product
of history, a mere puppet of its social interests" and "an impotent reflex of


Id. (internal quotations marks omitted).

Andrew Goldsmith notes that Fish is plagued by "cultural determinism." Id.
FISH, Fish v. Fiss,supra note 42, at 135.
See Goldsmith, supranote 158, at 391.
See Dworkin, Beyond Law, supra note 139, at 400-13.






" For example, Fish states that "a historically

its historical
conditioned consciousness cannot... scrutinize its own beliefs, conduct a
rational examination of its own convictions," because one "could only do
that if it were not historically conditioned and were instead an acontextual
or unsituated entity."'" Fish finds it impossible for anyone to criticize his
own position, because he does not believe that one can step beyond one's
ideology. His notion of interpretive communities presupposes that the individual is welded to the chain, and cannot think a thought that is not an
always-already interpreted product of the chain enterprise. Robert Scholes
asserts that members of Fish's interpretive communities "lack[' freedom,
power, and responsibility" and are subservient to the interpretive commuScholes does not deny that institutional strucnity's mystified power.'
tures indoctrinate individuals to think and behave in ways which the individuals internalize, but rather objects to Fish's conception of the individual
as an acquiescent social construcL
Eagleton proposes that rationality is neither an "ahistorical absolute"
nor a "mere reflex of current powers and desires."'' Eagleton argues that
Fish overlooks the power of the human subject "to transform its own social
determinants-to make something out of that which makes it."'7
theory is flawed because it does not allow for any meaningful selfreflection, reconstitution, and re-appropriation. Eagleton believes that
"emancipatory critique" takes place in this self-reflection which Fish denies. 7 According to Fish, any critiques of the present system are not radical because they are always-already contained within the amoeba system's
interpretive communities; any critiques not prescribed by the interpretive
community are meaningless garble (because no one can understand
them). 74 For example, Fish observes that:
in order to depart from the chain... [the author] must first determine what it would mean to continue the chain by determining
what patterns, themes, principles, and so forth, the chain displays.
In other words, he is as constrained by the chain in the act of departing from it as he would be in the act of continuing it (although
one must remember that in both instances the constraint-that is,

168. Id. at 169-70. Eagleton writes that "Fish's relentlessly monistic vision of things cxpe.Is all
contradiction from both self and world, terrified as it is of the slightest whiffof ambiguity or indetermi-

nacy." Id. at 169.


170. SCHOLE, supra note 154, at 150.


EAGLETON, IDEOLOGY, supra note 167, at 171.

172. 170.

173. 171.
174. See id.



(Vol. 33:1099

the chain-is interpreted).'

According to Fish, any direction the judge could take is always-already
implicit in the precedent." 6 Fish further argues that "departing from the
chain is one way of continuing it, and even more paradoxically, an agent
cannot depart from the chain even if he wants to and believes that he is
doing so."" Fish problematically conceives of the judge/interpreter as
helplessly trapped in the discourse and interpretive community which preexists him. If all meaning is always-already implicit, then what role is
there for human agency, and where did the meaning and interpretation
come from in the first place-doesn't this resemble the very sort of magic
language which Fish ostensibly critiques? Eagleton instead argues that
radical change can take place by subverting the discourse of the status quo
system, and by identifying points of "internal conflict... and contradiction" within a given text or system. 78
Even though a judge must construct and justify a solution to resolve a
present conflict and cannot merely identify heterogeneous modes of interpretation, this does not mean that a judge cannot identify conflict or must
pretend that conflict does not exist. For example, in United States v. Lopez, the various judges explicitly acknowledge conflict in interpretation of
the Commerce Clause. In the majority opinion, Rehnquist argues that
"Congress has operated within this framework of legal uncertainty ever
since this Court determined that it was the judiciary's duty to 'say what the
law is. "979 Kennedy's concurrence concedes "[tihat the progression of our
Commerce Clause cases.., was not marked [by] a coherent or consistent
course of interpretation."' 8 Thomas's concurrence notes that "our case
law has drifted far from the original understanding of the Commerce
Clause" ' and that the substantial effects test "lack[s] ... any grounding in
the original understanding of the Constitution."'" In his dissent, Breyer
argues that Rehnquist's majority opinion is what "threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled."' 83 Souter, in his dissent, contends that "today's decision tugs the
Court off course [of "history's sequence"]."'' The diverse Lopez opinions
reveal that interpretation is not unified and consistent, and that what one
judge views as coherent another judge may view as incoherent: there is no
175. FISH, Wrong, supra note 10, at 110.
176. Seeid. at 110.
177. Id.
178. EAGLETON, IDEOLOGY, supranote 167, at 171.
179. United States v. Lopez, 514 U.S. 549, 566 (1995) (quoting Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803)) (emphasis added).
180. Id. at 568 (Kennedy, J., concurring).
181. Id. at584 (Thomas, J., concurring).
182. Id. at 599 (Thomas, J., concurring).
183. Id. at 630 (Breyer, J., dissenting).
184. Id. at 604 (Souter, J., dissenting).



one objective universally agreed-upon 'best" answer that will ingeniously

unify precedent.
While Dworkin believes that over time the law will work itself pure, he
too acknowledges that law is "pervasively contestable."' 8 5 To ignore the
conflicts that exist not only within the substance of legal disputes, but
within struggles for modes of interpretation, is problematic. Even if one
accepts Dworkin's vision of law as seeking coherence and unity, a judge
must acknowledge conflicts to find the "best" answer, as Lopez illustrates.
Dworkin recognizes that integrity is not the polar opposite of conflict and
contradiction, and he argues that a creative judge does not have to follow
precedent if he can show it to be mistaken.' He further notes that a judge
may engage in a "dramatic reinterpretation that both unifies what has gone
before and gives it new meaning or point.""' Therefore, a naturalist judge
may simultaneously ground her decision in the past and "may yet seem
radical" by "fnd[ing], in some principle that has not yet been recognized in
judicial argument, a brilliantly unifying account of past decisions."'" This
is the type of Dworkian passage that Fish contests: principles do not exist
to be found, and what one judge deems unifying another judge may deem
splintering. But Dworkin rightfully acknowledges that although judges
must write within the boundaries of a legal history and tradition, the
boundaries are not fixed but are always-already being transformed, as the
judge mediates the present through re-appropriating the past. Just as previous Commerce Clause decisions affect how a judge reads Lopez, Lopez
affects how a later judge reads earlier Commerce Clause precedent. For
example, in United States v. Morrison," Chief Justice Rehnquist repeats
by rote his own interpretation of Commerce Clause history laid out five
years earlier in Lopez: "As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed.
We need not repeat that detailed review of the Commerce Clause's history
here."'" Here, Rehnquist implies that once is all it takes to lay out a history, and denies including any cases or revisions of interpretation of the
interceding five years, as if the history is always-already the same, an unquestioned given. But this vision of history as not needing revision, too, is
an interpretation, and betrays the majority's predisposal to follow the rationale of Lopez.
Dworkin's chain enterprise is progressive in that later decisions build
from earlier ones, but the chain is not a one-way linear chain because later
decisions affect how judges read earlier decisions. If Chief Justice

Dworkin, BeyondLaw, supra note 139, at 411.

Dworkin, Natural,supranote 10, at 169.
120S.Ct. 1740(2000).
Id. at 1748 (citations omitted).


[Vol. 33:1099

Rehnquist time-traveled to the time of seminal Commerce Clause cases

such as Wickard, knowing all of the post-Wickard cases, he would interpret
the Wickard problem differently than a Wickard-contemporary judge. This
does not mean that Rehnquist and the earlier judge would come to different
results, but is meant to observe that their interpretative strategies and lenses
would differ. As the differing visions in Lopez illustrate, identifying conflict in history is important; a judge's role is not simply to find unity and to
ignore strife. Because different judges will identify different conflicts in
precedent and history, different judges will have different visions of what
is "best" for the community, but instead of being something negative, these
contested visions serve to spur individual agency by triggering debate and
by challenging readers to consider alternative viewpoints.
D. Monolithicism: How Can You Support or Fight the Power ifYou
Can t Even Identify It?
Robert Scholes goes so far as to denounce Fish's interpretive communities as being "vague, inconsistently applied[,] unworkable," and downright "totalitarian," and, like Eagleton, criticizes Fish's theory for eradicating the possibility of human choice.' But if the interpretive community
always-already decides for us, and if we cannot even identify other members of our interpretive community (which means we cannot really define
the community), then who is actually doing the interpreting and deciding?
Somehow, the interpretive community resembles the Wizard of Oz hiding
behind the curtain of mystified power.
Instead of vesting power in the mystified interpretive community, both
Scholes and Eagleton argue that individuals hold the key to create meaning
and alter the conditions of their social realities. As Scholes argues,
Different, even conflicting, assumptions may preside over any
reading of a single text by a single person. It is in fact these very
differences-differences within the reader, who is never a unified
member of a single unified group-it is these very differences that
create the space in which the reader exercises a measure of interpretive freedom. 92
This relates back to our earlier discussion of interpretive communities--every student in law school who is supposedly being indoctrinated
into a legal interpretive community brings different backgrounds, assumptions, and interpretive tools to law school-students do not enter the legal
interpretive community as blank slates. The actuarial student, investment
banker, paralegal, and astrophysics Ph.D. will each bring something different to the interpretive community, and Scholes identifies an "interpretive
191. SCHOLES, supra note 154, at 150, 153; See EAGLETON, IDEOLOGY, supra note 167, at 170-71,
192. SCHOLES, supra note 154, at 154.




freedom" in the diverse ideologies and viewpoints that different people

necessarily bring to interpretive communities. Interpretive communities
cannot totally govern individuals' behaviors or predict meaning, because
interpretive communities are not isolated, but are linked to other modes of
discourse and material analysis, and individuals are always-already subjects of diverse and multiple interpretive communities. No two members
of one interpretive community will share exactly identical views because
each individual will have a different social and personal experience and a
different institutional background which will affect how that individual is
assimilated into the legal interpretive community.
Although Fish concedes that members of an interpretive community
may have different perspectives on a situation (for example, the dissonant
majority and dissents in Lopez), he takes for granted that individuals within
his ill-defined interpretive communities actually share the same uncontested views about the categories and strategies for interpretation. Furthermore, he does not acknowledge that a particular reader may, and in fact
does, belong to many diverse interpretive communities. Because each
member has (radically or slightly) different combinations of interpretive
influences, a reader's ability to constitute meaning is not monolithic or
limited, but is open to multiple possibilities. The very fact that no two interpreters will share the exact same combination of social experiences,
institutional background, and intellectual training is what enables interpretation to be potentially radical and liberating.
As Lopez illustrates, judges trained in the same legal discourse at
roughly the same historical moment may have different ideas regarding
federalism and the role of the Court. 93 This is not to suggest that reading
is totally unconstrained, because reading is "always limited by such prior
acquisitions as language, generic norms, social patterns, and beliefs.""
the same time, there is no one strategy of interpretation that any interpretive community can dictate.
In his essay Change, Fish defends himself against charges that his interpretive communities are too monolithic and unyielding."s He asserts
that "the mind is not a static structure, but an assemblage of related beliefs"
which interact with each other to possibly bring about a "selftransformation."'" 6 Furthermore, he states that both the individual mind
and the interpretive community are "an ongoing project whose operations
are at once constrained and the means by which those same constraints can
be altered.""' But such change does not arise spontaneously outside the


Supradiscussion at Part II.B.

SCHOLSs, supranote 154, at 150.
See FISH, Change,supra note 85, at 142.
Id. at 146.



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community, instead it forms within the community." 8 However, Fish does

not clearly describe how participants in the interpretive community can
"alter" anything, or how any alteration is possible within the context of his
assertion that all ideas are always-already constrained by the interpretive
community. Fish further asserts that although the interpretive community
may hold a "homogenous... general sense of purpose," the potential practices it can accommodate are numerous. 99 Fish sees his interpretive community as "an engine of change" which is continuous and progressive
rather than functioning as pre-existing rigid code. 2" He contends that interpretive communities are not imperialistic because they are not monolithic but instead are comprised of "interlocking assumptions... which can
always be brought into play as a check against the others and all of which
are answerable to the complex social situation" that anchors the community.2 ' But again, Fish's theory falters because he does not clearly define
interpretive communities, and he fails to clarify who defines the "general
sense of purpose" or how members can identify this vague purpose if they
cannot even identify each other.
Fish's desire to find a "general sense of purpose" in interpretive communities, without properly explaining the origins of this vague purpose,
ignores the specific conflicts in an interpretive community. Fish does not
explain how an interpretive community deals with internal conflict or with
how a "general sense of purpose" becomes representative of a particular
interpretive community. Andrew Goldsmith further criticizes Fish's interpretive community:
Fish's failure to account for law's violence, for its features rooted
in political economy and ideology, and hence for the deeply divisive interestedness underlying interpretive games in the courts and
law offices, reflects his inability theoretically to come to terms
with what the law means to countless millions of ordinary citi20 2
Law does not derive its meaning only from abstract language theories
or even just from judicial opinions and statutes-law has meaning every
day when it touches the lives of all citizens, who internalize law's norms
and/or challenge law. Fish's glossed view of interpretive communities
whose members are united by some "general sense of purpose" does not
account for the struggle which permeates the law. At its extreme, criminal
law deprives people of their liberty. Rather than impeding interpretation,
struggle is what triggers the chain to progress.

Id. at 147.
Id. at 149.
Id. at 150-51.
at 152.
Goldsmith, supra note 158, at 401.



Fish's reliance on some vague and undefined purpose as binding members of interpretive communities mystifies social reality by focusing on
abstract ideals rather than specific circumstances grounded in history.
Fish's perception of interpretive communities as homogenous and "relatively stable" mystifies the fact that most legal disputes are "volatile, personal" and specific. 3 Dworkin's vision of a chain enterprise, in which the
judge must justify her decision by looking back at legal history, offers an
alternative, because Dworkin realizes the importance of situating the present within its constituting history. However, Dworkin's theory is limited
by his under-emphasizing of the conflicts and struggles which are a part of
history and which disrupt any attempt to present a "unified" vision of history. As Fish stresses, different groups with different political visions may
disagree about what is "best" for the community, and Dworkin does not
consider how any particular vision of what is "best" becomes dominant and
imposes its norms on others who may not share the belief.
Although Fish's notion of interpretive communities reminds us that individuals think within boundaries, Fish fails to clearly define interpretive
communities and to conceive of individuals as being responsible, autonomous agents who can transform their conditions and take control of their
lives. The Conclusion will summarize the strengths and weaknesses of
Dworkin's and Fish's theories, and will suggest how their theories can be
If, as Dworkin contends, over time law will work itself pure, how will
law continue to react to the different facts of new cases, to changing historical conditions, and to conflicts in history, which will always threaten
this so-called purity? Ultimately, Dworkin's idealistic vision fails because
his aspirational goal of law working itself pure conflicts with the means he
proposes (that judges constantly grapple with history in order to shape a
better present and future). But if, as Fish contends, everything is alwaysalready interpreted and members of interpretive communities cannot even
identify each other, how will individual and community agents take responsibility to shape their understandings of the past, as well as to shape
their present and future? While Fish rightfully criticizes Dworkin's claim
that the constraints within the chain enterprise become more tight over
time, Dworkin more meaningfully conceives how judges must constantly
construct present decisions not only by reconstructing legal history, but
also by integrating their understanding of what is best for the community
(by considering social, political, and cultural concerns). To Dworkin, such
203. ScHOLES, supra note 154, at 163.
204. PALMER, supra note 1,at xiv.


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historical and political concerns are not beyond law, but are part of law's
integrity. Whereas Dworkin is more concerned with the political ramifications of law and judging, Fish is more concerned with prior assumptions
that interpreters always-already bring to texts.
Fish's automatic reduction of all meaning to "interpretation" illustrates
what historian Bryan Palmer criticizes as the "descent into discourse. ' ' 5
Palmer contends that "[c]ritical theory is no substitute for historical materialism; language is not life."' He furthermore argues that criticism focused on discourse and interpretation "will always stop short of interpretive
clarity and a relationship to the past premised on political integrity and a
contextualized situating of historical agents within structures of determination."0 7 This is not meant to suggest that it is not important to recognize
how institutional enterprises (schools, family, religion, law) indoctrinate us
to think in certain ways, which we internalize, and which always-already
taint how we read and write and analyze, but it is important to realize that
automatically reducing everything to interpretation may cause us to overlook factors that historical mediation will force us to consider. Discourse
theory and interpretation are important, because they reveal how we construct meaning and perceive history and social realities, but must be studied
in balance with historical facts."' 8 Absent his claim that law works itself
pure by working towards a distilled unity, Dworkin's chain enterprise theory responds to Palmer's concern that meaningful critical theory must
struggle to construct a link to the past, consider political integrity, and consider the struggle between human agents within determined structures (the
pre-existing genre of law) which are always in flux, as the chain enterprise
progresses and continuously revises precedent.
However, Fish is not alone in his descent into discourse. The currently
fashionable "plain meaning" interpretation (looking just at the clear language) also deems the written text as privileged and self-determinate, separate from bodies, pain, and materiality. Justice O'Connor's majority opinion in a recent Americans with Disability Act (ADA) case exemplifies the
problematic extremes of strict literalism.2 According to the ADA, a disability is "a physical or mental impairment that substantially limits one or
more of the major life activities" of an individual.2"' O'Connor justified
the conclusion that the ADA covers disabilities in their corrected, rather
than uncorrected state, by pointing to the "plain language" of the ADA:
Because the phrase 'substantially limits' appears in the Act in the

Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).
Id. at482.




present indicative verb form, we think the language is properly

read as requiring that a person be presently-not potentially or hypothetically-substantially limited in order to demonstrate a disability. A "disability" exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or
"would" be substantially limiting if mitigating measures were not
taken. A person whose physical or mental impairment is corrected
by medication or other measures does not have an impairment that
presently "substantially limits" a major life activity. 2"
O'Connor's decision, which severely limited the scope of the ADA,
rested upon a "literal" interpretation of verb tense, which runs counter to
the ADA's own text proclaiming its purpose.2t2 Focusing solely on the
isolated statutory language to limit the ADA's coverage contradicts the
goals and public intention of the ADA.2P Furthermore, O'Connor's focus
on the plain meaning of the present tense of "substantially limits" is contrary to the plain text elsewhere-for example, that a record of impairment
(past tense) may deem one a qualified individual. 2t4 Sutton illustrates the
social harm of isolating words from their material social context, and from
a statute's larger context. The meaning of "substantially limits" is far from
obvious, and plain meaning textualists mystify the struggle that always
surrounds interpretation.
This is not to equate Fish's theory with strict textual theories of adjudication, but merely to point out the problems, on different ends of the political spectrum, of the descent into discourse, and of automatically reducing
meaning to interpretation without considering material history and its brute
(although always-already interpreted) "facts." "Material brute facts" is not
intended to mean that objective facts always lie waiting to be discovered,
but to highlight the conflict in construing and interpreting facts, and to
suggest that materiality and suffering, inherent in history and in law,
should not be buried by an abstract study of discourse and interpretation.
The brute facts are what are contested, not what are given.
David Couzens Hoy's discussion of interpretation offers a way to
211. 482-83.
212. The Americans with Disabilities Act, 42 U.S.C. 12101(b) (1994), endorses a broad interpreta-

tion of the ADA:

It is the purpose of this chapter-

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities....
(4) to invoke the sweep of congressional authority... in order to address the major areas of discrimination faced day-to-day by people with disabilities.

213. Id.
214. 42 U.S.C. 12102(2) defines "disability," "with respect to an individual" as "a physical or
mental impairment that substantially limits one or more of the major life activities of such individual;
[or] a record of such an impairment"



[Vol. 33:1099

bridge what is most usefil in Dworkin and Fish, and he suggests how an
individual can be bound by history and community expectations, yet still
be creative. Hoy bases much of his discussion on Hans-Georg Gadamer's
hermeneutics theory of interpretation, which examines interpretation as
involved in developing a tradition.215 Like Dworkin, Gadamer examines
the historical nature of interpretation; like Fish, Gadamer believes that
comprehending the historical context is "always-already interpretation. 2 6
However, while Gadamer shares Dworkin's belief in re-appropriating the
past to solve present problems and to serve the community, he does not
claim that law will work itself pure and reveal any universal best answer.
Instead, he recognizes that "[w]hat counts as 'best' depends on the purposes of the interpretation." ' Therefore, what is best today might be challenged tomorrow by new data produced as time marches on. Gadamer
believes that analyzing tradition will always leave one with a range of options.2" 8 Just as how one interprets present texts will be affected by one's
experience reading earlier texts (and also one's living within a tradition
informed by earlier texts, even if the individual has not read the texts),
one's interpretation of earlier texts is conditioned by having read later
texts." 9 Even though present circumstances condition the interpreter's
understanding, the interpretation is never arbitrary or subjective because
"understanding always presupposes a tradition."'
However, Gadamer's notion of tradition is not without its problems.
For one thing, tradition is not monolithic, and what we perceive as tradition
is itself an interpretation. Tradition is not unified and universally agreedupon, but is freighted with conflict over whose "best" interpretation is
adopted by the dominant political, legal, educational institutions. Seeking
some idealistic coherence and unity in history serves to mystify struggle
and conflict, and potentially reproduces problematic social inequalities. As
Fish reminds us, we exist within cultural and institutional structures, which
teach us to think within certain parameters imposed by language and culture. As Dworkin reminds us, individuals must constitute their positions
within their histories, must take responsibility for their thoughts and actions, and must seek to construct a legal system with integrity (although
there may be no universal meaning of integrity). Because no two individuals share the exact same social, educational, and personal experiences,
there is always the possibility of creative thought to identify and solve
problems. Conflicts in law and history should not be ignored or explained
away in pursuit of some idealistic forced coherence. Even though different

See Hoy, supranote 107, at 136.

Id. at 139.
Id. at 145. 143.
Id. at 147.
Id. at 141.




groups may disagree about what the "best" answer is, judges must look to
precedent and legal history to make principled decisions. Awareness of
our own presuppositions as we interpret (read and write) legal texts is critical, because it helps us to identify conflicts and inconsistencies in precedent, which helps us to comprehend present cases.
Ultimately, Fish's ideas about the importance of interpretive presuppositions, combined with Dworkin's concerns for the political responsibility
ofjudging and for grappling with history, together suggest a more powerful
legal theory than either theory does alone. The chain enterprise does not
have to conceive history as an asphyxiating constraint-the chain can be
seen as linking individuals and inspiring people to investigate their histories so as to take charge of their presents and improve their futures. The
literary chain novel metaphor, along with literary criticism's tendency to
explore textual incoherence and conflict, reminds us of the importance of
not mystifying conflict as we seek coherent explanations for legal principles and judicial decisions.

Thanks to my family and friends, with special thanks to Scan and Dana, for being who you are.