The Value of Friendship in Law and Literature

Fordham Law Review, Aug 2018

Once thought to be indespensible to a good life, the value of friendship has been swept away by the most recent trends in philosophical, literary, and legal thought. After tracing the subtle decline in the value of friendship, this Article employs these very trends to redefine and resurrect that value, particularly within American law. A good work of art is one which elevates its own art-form by successfully channeling the anxiety of influence created by competing art forms. A good judicial opinion, therefore, is one which elevates the art of judging above strong competing arts such as philosophy and literature. Friendship can bee seen as the relationship which is created among artists through their work. The judge who elevates the art of judging is a good friend to all other judges. This redefinition of friendship has philosophical, political, and aesthetic value. Those past literary and legal works which have been considered to be "great

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The Value of Friendship in Law and Literature

The V alue of Friendship in Law and Literature Michael J. Kaufman 0 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation Michael J. Kaufman, Th e Value of Friendship in Law and Literature, 60 Fordham L. Rev. 645 (1992). Available at: - Article 3 Once thought to be indispensibleto a good life, the value offriendship has been swept awayby the most recenttrends inphilosophical,literary,and legalthought. After tracing the subtle decline in the value offriendship, this Article employs these very trends to redefine and resurrectthat value particularlywithin American law. A good work ofartis one which elevates its own art-form by successfully channeling the anxiety of influence created by competing artforms. A good judicial opinion, therefore, is one which elevates the art ofjudging abovestrongcompeting artssuch asphilosophy andliterature. Friendshipcan be seen as the relationship which is createdamong artiststhrough their work Thejudge who elevates the art ofjudging is a goodfriend to all otherjudges. This redefinition offriendship has philosophical,political, and aesthetic value. Those past literaryand legal works which have been considered to be "great" are indeed "great"precisely because they elevate their particularart forms above competing artforms. Even our bestjudges today have been unable to channelthe very realinfluencesof contemporaryphilosophicand literarythought into an elevation ofthe artofjudging. ProfessorKaufman concludes by suggestinga strategy which contemporary judges may employ to channelthese influences into an evaluation of thejudicial art. Indeed,ProfessorKaufman's Article is itselfsuch a strategy. "Without friends no one would choose to live, though he had all other goods." - Aristotle* "A friend can reduce me to misery with a single look." - Duncan Kennedy" THE language of antinomiesl contradictions,2 and deconstruct Associate Professor, Loyola University of Chicago Law School; B.A., Kenyon College 1980, M.A., University of Michigan Graduate School of English Language and Literature 1983, J.D., University of Michigan Law School 1983. The author wishes to thank for the gift of their friendly insights, Linda Hirshman, Mortimer Adler, George Anastaplo, William Braithwaite, James Carey, Jim Curtin, Donald Regan, and Ronald Sharp. * Aristotle, The Nicomachean Ethics 192 (D. Ross trans. rev. ed. 1987). ** Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 209, 212 (1979). 1. See e.g., R.M. Unger, Social Theory: Its Situation and Its Task 24-25 (1987)(attempting to overcome antinomies, the opposition of one law or rule to another, in liberal society by redefining community); R.M. Unger, Knowledge and Politics 104-44 (1975)(exposing fundamental contradictions in liberal thought); Singer, The Player and the Cards. Nihilism andLegal Theory, 94 Yale L.J. 1, 1-9 (1984)(exploring landscape of nihilism in contemporary legal theory). 2. See e.g., Kennedy, Distributiveand PaternalistMotives in Contractand Tort Law, with Special Reference to Compulsory Terms and Unequal BargainingPower, 41 Md. L. Rev. 563, 576 (1982)(unearthing fundamental contradictory motives in contract and tort law); Kennedy, The StructureofBlackstone's Commentaries,28 Buffalo L. Rev. 205, 213 (1979)(discovering fundamental tensions in the common law); Kennedy, Form andSub. tion3 floods the landscape of legal, philosophic, and literary discourse.4 The currents challenge not only traditional value structures, but also the human effort to erect those structures.5 Thus far, the backlash has been strong only in its rhetoric.6 If deconstruction does expose irreconcilable contradictions in our systems of value, however, then rhetoric alone cannot reconstruct those systems. Instead, the reconstruction of values in the wake of deconstruction's erosive impact must be accomplished by accepting, rather than rejecting, its fundamental tenets. This Article develops a strategy for the reconstruction of the particular value of friendship. Once thought to be indispensable to the good life, friendship is now absent from most meaningful discourse.7 Its resurrection requires more than a leap of faith. The first step in the strategy of resurrecting the value of friendship is tracing its decline. This Article begins by charting that decline in literature, philosophy, and law. It shows that American law in particular has exploited the language of friendship, while debasing the value of friendship. Friendship apparently has no place in a legal system based upon a fundamental contradiction between the individual and the community. Part II begins the effort to return friendship to that legal system by redefining friendship. In an epoch in which all distinctions between law, literature, and philosophy have been collapsed, the analysis of legal issues necessarily involves issues of literature, and philosophy. This Article uses literature and philosophy to create a definition of friendship. Friendship after the flood of deconstruction is not two people sipping decaffeinated coffee. Rather, friendship is a relationship that develops between two or more people through the medium of the texts which they write. It is a timeless relationship that exists among the authors of literature, philosophy, and law. The relationship between authors is revealed stance in PrivateLaw Adjudication, 89 Harv. L. Rev. 1685, 1685-86 (1976)(exposing antinomy of rules and standards in private law). 3. The usual starting place is Kennedy & Klare, A Bibliography of CriticalLegal Studies, 94 Yale L.J. 461 (1984). 4. The word "discourse" as used throughout this article encompasses all legal, philosophic, and literary writing. I use the term often because it is broad enough to include all form of written communication in the fields of law, philosophy, and literature. 5. See, e.g., J. Derrida, Of Grammatology 37-73 (Spivak trans. 1976)(exposing all logocentric value structures as the product of human engineering) [hereinafter Derrida, Of Grammatology]; Heller, Structuralism and Critique, 36 Stan. L. Rev. 127, 127-30 (1984)(displaying and critiquing fundamental structures in Western thought). 6. See, e.g., Carrington, Of Law and the River, 34 J. Legal Educ. 222, 226 (1984)(metaphorical attack on teachers of critical legal studies); Rosenberg, Uproarin the Academy: Deconstruction'sCorrosiveRole in American Higher Learning,Chi. Trib., Mar. 26, 1991, § 14, at 5, col. 1 (ethnocentric diatribe against deconstruction in American education). But see Delgado, The Ethereal Scholar: Does CriticalLegal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 320-22 (1987)(arguing that abstract critical legal studies are unhelpful in solving practical problems). 7. See infra notes 13-64 and accompanying text. But see Fried, The Lawyer as Friend: The MoralFoundationsof the Lawyer-Client Relation, 85 Yale L.J. 1060, 107176 (1976)(arguing that a lawyer has a moral obligation to represent zealously a client as a limited-purpose public friend). and even enriched through their literary, philosophic, and legal discourse. Friendship, as defined, is not an illusory horizon shaped around a false center. Instead, friendship is an ellipse which emanates from the focus of each friend. An ellipse is the coincidence of the hyperbolas created from two foci. What coincides in the good friendship? The good friendship, it will be argued, is a coincidence of the love of each friend's techne.8 That which coincides in good friends is the desire to elevate each other's techne. Among creators of literary discourse, friendship is the coincidence of the love of the techne of literature. Among creators of philosophic discourse, friendship is the coincidence of the love of the techne of philosophy. And among creators of legal discourse (judges, scholars, and practitioners), friendship is the coincidence of the love of the techne of law. Armed with this post-deconstructionist definition of friendship, we can begin to evaluate legal discourse. The "good" judicial opinion, for example, is one which elevates the techne of judging in particular and of law in general. A good judge befriends other judges by writing judicial opinions which elevate the art of judging. Part II concludes with an argument that this evaluative criterion is good, useful, and pleasant; it is philosophically sound, politically utilitarian, and even aesthetically pleasing. In Part III, this strategy of redefinition and resurrection of friendship is put to the test. By comparing great literary creators with great judges writing in the same philosophic epoch, this Part discovers a common thread of greatness. I argue that the literary and legal works which we have perceived to be great in the past are those which display the highest forms of friendship. The argument begins with a juxtaposition of the work of two great novelists who, despite an apparently intense enmity, actually displayed in their novels the highest form of friendship-Samuel Richardson and Henry Fielding. The novels of Richardson and Fielding are considered great because they are beautifully developed arguments for the greatness of the art of literature in general and the art of the novel in particular. These novelists befriended each other and all literary creators by elevating the art of the novel and of literature. The novels of Richardson and Fielding are then compared with the decisions written by Justice Joseph Story, a great judge. Although he was not an exact temporal contemporary of these novelists, Justice Story wrote in an age flooded by similar philosophic influences. He employed devices comparable to those of Richardson and Fielding in his great opinions to demonstrate the supremacy of his particular art: the art of law and the art of judging. 8. The Greek word techne is used throughout this article because it embodies art, science, calling, role, and the telos or ends toward which each is directed. For style purposes, the word art is sometimes used in this Article in place of the word techne. When the word art is used, however, I intend it to carry the full measure of meaning housed in the Greek word techne. Part III then compares the contemporaneous work of German literary critic Walter Benjamin with that of Justice Holmes. Benjamin has become known not only for the genius of his literary criticism,9 but also for the genius of his friendships.1" By brilliantly elevating the art of literary criticism in his particular epoch, Benjamin actually befriended all literary critics. And, using similar strategies in the same epoch, Justice Holmes befriended all judges by subtly elevating his art: the art of judicial decision-making. Part IV searches for contemporary literary and legal friendships. In our epoch, Jacques Derrida's writings masterfully elevate all literary artists and philosophers of language by elevating the play of language itself. The techne of literature thus has now become difficult to separate from the techne of law.11 Not surprisingly, therefore, the art of literature has also become a threat to the supremacy of the art of law. Unlike our great judges of the past, however, who elevated the art of judging above the strong competing arts of their epochs, our best contemporary judges have failed to respond to the anxiety of influence from Derrida's elevation of literature with a successful counter-strategy for the elevation of law. Even United States Court of Appeals Judge Richard Posner, who has written extensively on the relationship between law and literature, has not yet developed a strategy for meeting the Derridean claims. The unfortunate failure of contemporary judges to elevate the techne of law in their opinions is typified by the various judicial opinions in the CTS Corp. v. Dynamics Corp. of America12 case. The opinions in that case, including Judge Posner's for the Seventh Circuit, denigrate their authors, denigrate great precursor judges, and fail to channel the anxiety 9. See, eg., H. Arendt, Introduction to W. Benjamin, Illuminations, Essays and Reflections 1-2 (1968) [hereinafter Benjamin, Illuminations] (praising Benjamin's brilliance as a literary philosopher); P. Demetz, Introduction to W. Benjamin, Reflections, Essays, Aphorisms, Autobiographical Writings 1-3 (1986) [hereinafter Benjamin, Reflections] (similarly praising Benjamin's literary criticism). 10. See generally G. Scholem, Walter Benjamin, The Story of a Friendship (1975). 11. For excellent arguments for, and examples of, the linkage between law and literature, see Heilbrun & Resnik, Convergences: Law, Literature,and Feminism, 99 Yale L.J. 1913 (1990); Gemmette, Law and Literature: An UnnecessarilySuspect Classin the Liberal Arts Component of the Law School Curriculum, 23 Val. U.L. Rev. 267 app. I (1989)(Law and Literature courses offered at thirty-eight ABA approved law schools); Koffler, ForgedAlliance: Law and Literature (Book Review), 89 Colum. L. Rev. 1374 (1989); Winter, The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning, 87 Mich. L. Rev. 2225 (1989); West, Communities, Texts, andLaw: Reflections on the Law and Literature Movement, 1 Yale J.L. & Hum. 129 (1988); West, Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory, 60 N.Y.U. L. Rev. 145 (1985); Levinson, Law as Literature, 60 Tex. L. Rev. 373 (1982). 12. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 (1987), reversing794 F.2d 250 (7th Cir. 1986). The author represented Dynamics Corp. in the federal courts and in the Supreme Court. The views expressed in this Article are entirely those of the author. Dynamics Corp. will not be affected by those views. Indeed, this Article employs the various opinions in the Dynamics Corp. litigation merely as examples of contemporary styles ofjudicial decision making; it does not challenge the results of that litigation in any way. of Derrida's influence. This Article concludes with a modest suggestion as to how the Dynamics opinion-and perhaps all judicial opinionsmight be written so as to elevate the techne of law. I. THE ABSENCE OF FRIENDSHIP In this Part, I trace the decline of friendship in literature, philosophy, and law. Proving the absence of a value like friendship is difficult; it is like listening for dogs who do not bark. Accordingly, I rely upon literary critics and philosophers who themselves have searched in vain for signs of friendship in literature and philosophy. I trace the absence of friendship in law by suggesting that legal doctrine approaches the boundaries of that value, but never crosses them. The topic of friendship is extremely difficult to find in twentieth century literature and criticism. In the Kenyon Review, Ronald Sharp, a former editor, asks: "Where do we turn for a first-rate treatment of friendship? Aristotle, Montaigne, Emerson, and many other names leap to mind; but where is the crowd of contemporary--even twentieth-century-figures clamoring for a privileged place on our list?"' 3 Sharp writes that the absence of the topic of friendship from every genre "has much to do with the fear of sentimentality."' 4 This fear is related in part to an unwillingness of modem thinkers to attach themselves to a moral value, or to locate their theories at a false "center." Coincidental with the decline in the topic of friendship within literature is the decline in the use of friendship as a critical metaphor. Wayne Booth reminds us that the personification of books as friends in the nineteenth century was fashionable.15 In 1838, William Ellery Channing declared that "it is chiefly through books that we enjoy intercourse with superior minds.... In the best books, great men talk to us, give us their most precious thoughts, and pour their souls into ours."' 6 Martin Tupper's belief that "[a] good book is the best of friends"' 7 was not uncommon in the nineteenth century. The metaphor of book as friend has been reversed, in the twentieth century, to friend as book. In the most recent literary criticism, the individual, sentient being is called a "text;" the text is not called an individual sentient being.'" Booth observes with cynicism the current metaphors attached to books by Jacques Derrida, Roland Barthe, Frederick Jameson, and others: "the work as labyrinthine web, as one more cell-block in the prison house of language, as puzzle, as code, as ecriture expressing itself."19 While those descriptions do not take animation away from books, they do strip literature of human warmth. Booth implies that modem criticism not only reverses the metaphor of friendship, but also denies any gradation of traditional moral values by which to judge literature; modem criticism suggests a popular relationship to a book that is based on the desire for pleasure, and it attempts the separation of elite and professional critics from society. B. The Absence of Friendshipin the Art of Philosophy Although Booth and Sharp focus upon the decline of friendship as a topic in literature and as a metaphor in literary criticism, their observations extend to the philosophic landscape as well. Friendship is conspicuously absent in modem thought: The neglect of friendship as a serious subject of inquiry in modem thought is itself a strange and wondrous thing; after millennia during which it was one of the major philosophic topics, the subject of tdhleodustaon dthseopfobionot ktshaatndoutrenesncoyfctlhoopuedsaiansdsdoofneostsaeyvse,nitmheanstinoonwit.d2w0inIndeed, in his introduction to Plato's fundamental work on friendship, The Lysis, David Bolotin similarly observes, "[i]f we wish to find philosophic discussions of friendship, we are almost compelled to turn to the writings of classical antiquity[;] ... in modem times, philosophers have rmareenlty ogfivseonciaitl aanndexppolliictiitcapllalcifee."in2 1their moral teaching or in their treat Friendship is not just absent from philosophy and literature. As Sharp, Booth, and Bolotin suggest, it is absent from all modern thought, including modem legal thought. It is noticeably absent from American law. The absence of friendship in American law is noticeable because a subtle pattern has developed in the law within which the value of friendship implicitly is either ignored or rejected. By tracing the ways in which fundamental legal doctrines in property, torts, contracts, corporations, evidence, and constitutional law have implicitly ignored or rejected the value of friendship, we can fully appreciate the absence of that value. 1. Gifts The law of property has flirted with, but never embraced, friendship. 19. Id. 20. Id. 21. D. Bolotin, Plato's Dialogue on Friendship 9 (1979) [hereinafter Bolotin, Plato's Dialogue]. Lewis Hyde has written that gift-giving is a primary aspect of true friendship. 22 He surveys tribal myths and finds in them a common understanding of gift-exchange among friends. Gifts are defined in direct contrast to capital. The "gift is to the giver, and comes back most to him."2 " Aristotle similarly reasons that in friendships based on virtue, it is the intention of the donor rather than the value to the recipient that is critical. 4 When a gift is transferred to a higher-valued use, it loses its quality as a gift. The body of property law protects some aspects of gift-giving, but it effectively equates gifts with capital. Gifts are generally enforced, but only where a court finds evidence of donative intent and actual or constructive delivery. 25 American law is unique in failing to enforce promises to make a gift.26 Not even equity will aid the enforcement of a gift which is executory or conditional.27 Because donative intent is not sufficient to establish a gift, the gift is not to the giver. Rather, the focus of gifts in American law is upon the delivery of a commodity to the donee.2" The requirement of delivery is justified in part because it deters gift-giving: The wrench of delivery[,] . . . the little mental twinge at seeing his property pass from element to the protechtiisonhaonfdtsheintdoontohro.s2e9 of another, is an important American law protects the donor from the "thoughtless and hasty"30 decision to give the gift.3 Ironically, American law presumes that gifts are "thoughtless." 32 2. Guests and Helpers Tort law similarly devalues friendship. One of the greatest gifts which friends give to each other is the gift of opening up their homes-inviting each other to be guests in their respective houses.3 3 The body of tort law has long imposed upon owners or occupiers of land a duty to use reasonable care for the protection of those who are invited to enter the land.34 Historically, social guests and hence friends were placed among the class of invitees to whom an inviter owed such a duty. 35 But although tort doctrine has generally retained its special protection for the class of invitees,36 it has gradually removed friends from that class. Courts first began to conclude that the duty of care did not run to friends of the landowner unless the landowner's invitation could be said to carry with it an implied representation that the premises were safe.37 Courts, in other words, were unable to infer-from the mere fact that a friend invited another friend to his house-a representation that the inviting friend had taken care to assure the house's safety. Furthermore, when the First Restatement of Torts was published, the basis of landowner liability to guests shifted completely-from an implied representation of safety to the implied consideration which the invitee receives in exchange for the economic benefit which his visit necessarily brings to the landowner.3 8 Under this regime, no duties run between friends who are guests in each other's homes unless the friends each derive some economic benefit from the visit. 39 Even those courts which have been liberal in their definition of economic benefit or have abandoned the element altogether have concluded that the landowner's duty should run only to property for valuable consideration, or in the ordinary course of business. See id. Rather, the tax is precisely levied on donors who give something of value without asking for the same in exchange. The I.R.S. taxes acts of friendship in situations where it does not tax value-maximizing transfers of assets to highest valued users. See id. 33. See also Restatement (Second) of Torts § 314A(2) (1965)(innkeeper has a duty to guests to protect them from unreasonable risk of physical harm, to give first aid after injury, and to care for ill or injured guests). 34. See generally Prosser, Business Visitors and Invitees, 26 Minn. L. Rev. 573 (1942)(owner of business premises has an affirmative obligation of reasonable care for the protection of those invited on to the premises); Allgauer v. Le Bastille, Inc., 101 Ill. App. 3d 978, 428 N.E.2d 1146 (1981)(business owner has a common-law duty to invitees to exercise ordinary care and maintenance to have premises in a reasonably safe condition). 35. See, e.g., March, The History and Comparative Law of Invitees, Licensees and Trespassers,69 L.Q. Rev. 182, 188-89 (1953)(summarizing the historical decline in legal protections afforded visitors). 36. See Prosser & Keeton, The Law of Torts § 62, at 433 (5th ed. 1984). 37. See Prosser, Business Visitors and Invitees, 26 Minn. L. Rev. 573, 604 (1942). 38. See Restatement of Torts § 332 comment a (1934); see also Prosser & Keeton, The Law of Torts § 61, at 420 (5th ed. 1984)(possessor's duty of care is derived from economic benefit expected from visitors). 39. See, e.g., Bohlen, The Duty of a Landowner Towards Those Enteringhis Premises of Their Own Right, 69 U. Pa. L. Rev. 142, 144-45 (1920)(owners of land with some business interest in guest's visit have a duty to inspect the condition of the premises and give warning of any dangerous conditions; owners of land have no duty to a visitor pursuing personal objectives). "public invitees."' Friends are not public invitees; they are private ones. Thus, the tort law duty running to invitees which sprung from a strong desire to encourage people to open their homes in friendship now excludes friendships from its protections. Moreover, tort law actually discourages acts of friendship. Absent a recognized relationship between persons, tort law imposes no affirmative obligations on anyone to protect another from harm.4 Although various commercial relationships are given special status from the law of torts, friendships are not among them.4 2 A friend has no obligation to protect a friend from danger. He can never be liable for his failure to help a friend. But if a person does decide to help his friend and, despite his best efforts, increases the risk of harm to that friend, tort law renders him liable not only to the friend4 3 but also to third parties whom he may have injured in the process.' Together, these fundamental tort law principles say to friends the following: (1) your relationship is insignificant relative to commercial relationships; (2) you have no obligation to keep each other from harm; and (3) your efforts to keep each other from harm may cost you money. 3. Obligations The messages underlying contract law are no different. The language of contract law is replete with images of friendship. Courts endeavor to find a meeting of the minds, offers, acceptances, promises, and even consideration.4 5 Out of the context of contract law, each of those concepts conjures a personal relationship in which empathy (a meeting of the minds), giving (offers), understanding (acceptances), trust (promises), and genuine caring (consideration) take place. But in the context of contract law, this language and those sentiments are both transformed.4 6 A meeting of the minds is not found unless there is objective evidence of a bargained-for exchange. A bargained-for exchange, in turn, is not found absent consideration. And consideration is not present unless something of value is contemporaneously exchanged between the parties. Because an obligation recognized by contract law cannot be formed absent an exchange of value between parties, contract law, by definition, does not recognize obligations among friends unless they exchange something of 40. Prosser & Keeton, The Law of Torts § 61, at 422 (5th ed. 1984). 41. See generally Restatement (Second) of Torts §§ 314, 314A (1965)(special relations between actor and another may impose a duty upon the actor to take affirmative precautions for the aid or protection of the other). 42. See id. Generally, the law of fiduciary duties imposes upon individuals duties of care and loyalty, but only in situations where a special commercial relationship exists between them. 43. See id. § 323. 44. See id.§ 324A. 45. See generally A.L. Corbin, Corbin on Contracts 37-336 (1952). 46. See, e-g., R Posner, Economic Analysis of Law § 4.1, at 79-85 (3d ed. 1986)(the function of contract law is to deter opportunistic behavior between contracting parties). value.47 This is not to criticize contract law's protection of commercial exchanges. It is rather to observe that the law of contracts exploits the language of friendship in order to define those obligations which it deems significant, and then to exclude, from the class of obligations it deems significant, those among friends. Acting on Behalf of Others In a similar vein, the law has developed economic immunities which protect a host of relationships, none of which involves friendship. For example, it is a fundamental tenet of agency law, and thus of corporation law as well, that an agent who enters into a contract with the authority of a disclosed principal cannot be liable for the breach of that contract. 48 Where the principal is a corporate enterprise, this tenet has the effect of immunizing the agents of the corporation, including its officers and directors, from the contractual obligations of the enterprise.4 9 The fictitious enterprise is liable for the contractual breach, not the people who manage the enterprise. This immunity is justified in part because it encourages the creation of commercial enterprises by qualified persons who will become managers of those enterprises without fear of individual liability from contractual obligations." The immunity demonstrates the high esteem in which the law holds commercial relationships. Suppose the law had instead developed the following immunity: no person shall be liable for a contractual breach where the contract was entered on behalf of a friend. The suggestion may seem laughable. Yet, the act of the agent on behalf of a principal cannot be distinguished on a principled basis from the act of friend on behalf of friend. Both the principal and the friend assent to and benefit from the actor's contracts, and both have some measure of control over the actor. 1 If the suggestion that acts of friendship should receive immunity seems laughable, therefore, it may be because the goal of encouraging productive commercial relationships seems so much more important than does the goal of encouraging personal relationships. Even if we know in our hearts that 47. This conclusion is entirely consistent with Clare Dalton's deconstruction of contract law, through which she discovers that the entire doctrine is based on an irreducible tension between the needs of the individual and those of society. See Dalton, An Essay in the Deconstructionof ContractDoctrine, 94 Yale L.J. 997, 1094-95 (1985). 48. See, e.g., 3A W. Fletcher, Cyclopedia of the Law of Private Corporations § 1118, at 209 (rev. perm. ed. 1986) (corporation, not corporate officer, is liable on contracts made by corporate officer within its authority). 49. See id. §§ 1117-18, at 209. 50. See, e.g., Veasey, Finkelstein, & Bigler, DelawareSupportsDirectors with a ThreeLegged Stool ofLimitedLiability, Indemnification,andInsurance,42 Bus. Law. 399, 40104 (1987)( justifying limited director liability because it encourages qualified managers to take business risks). 51. Cf Restatement (Second) of Agency § 1 (1957)(one who asks a friend to perform a service may inadvertently create an agency, since all that is required is conduct by the parties manifesting that one is willing to act for the other subject to the other's control). personal relationships of friendship are more important than commercial ones, the law of enterprise liability and immunity teaches us otherwise. 5. Privileged Communications The lesson is reinforced by the law of evidence. The law of evidence reflects social values that are even stronger than the strong social value in the resolution of civil and criminal disputes on their merits. The prohibition on the admissibility of evidence regarding subsequent remedial measures even where that evidence would have substantial probative value, for example, demonstrates a perception that society values remedial measures above merits resolution.2 Similarly, rules of evidence which shield from discovery and admissibility communications between attorney and client, doctor and patient, and husband and wife53 display a sense that society values the sanctity of those relationships above the resolution of a civil or criminal action on its merits. The relationships which the law in various states has valued enough to protect with an evidentiary privilege have recently expanded greatly to include the litigant-agent, the counselor-victim, the accountant-client, the parent-child, the guardian-ward, the school counselor-student, the teacher-student, and the social worker-patient. 54 Despite this recent expansion, the relationship among friends is still absent. While the absence of friendship from the list of sacred relationships may be justified because of the difficulty of defining and limiting the friend-friend relationship, the absence nonetheless devalues that relationship. The unspoken message is that the communications between friends are not as important as are those between, for example, an accountant and a client. While a free and open exchange of information and opinions between accountant and client is apparently vital, a free and open exchange of information and opinions between friends is apparently less SO. Constitutional Law and the "Private Association" This sense of the insignificance of friendship in the law of property, torts, contracts, agency, corporations, and evidence is manifest at the constitutional level as well. Most simplistically, there is of course no right to friendship expressly stated in the Federal Constitution. Nonetheless, a statute which somehow banned all friendships would surely be declared unconstitutional. But, on what basis would such a statute be invalidated? Two primary constitutional arguments could be made. First, the statute's ban on friendships could be challenged as a violation 52. See, eg., Fed. R. Evid. 407 (if subsequent remedial measures were not excluded, individuals would be dissuaded from taking necessary safety precautions, and so long as the relevance of the activity is not great, courts do not wish to sanction procedures which punish praiseworthy behavior). 53. See Fed. R. Evid. 501. 54. See 2 Weinstein, Weinstein's Evidence 501(09], at 501-107 to 501-134 (1991). of the judicially recognized right to privacy. Second, the statute's ban on friendships could be challenged as a violation of the First Amendment's right to freedom of association. Incredibly, however, neither the right to privacy nor the right to freedom of association, as each has been interpreted, recognizes the value of friendship. The right to privacy, as it has been interpreted by the Supreme Court, protects two kinds of interests: "the individual interest in avoiding disclosure of personal matters" or in autonomously "making certain kinds of important decisions." 5 It is debatable whether the Supreme Court would place friendship among the "personal matters" or "important decisions" which the right of privacy apparently protects. The debate, however, is irrelevant. For, even if friendship were among the "personal matters" or "important decisions" contemplated by the Court's privacy decisions, those decisions would not protect friendship itself. Rather, the logic of the Court's dual line of cases presumably would protect only unwanted publicity about a friendship or an individual's independence in deciding whom to befriend. Because friendships, however, necessarily involve two people, the right to privacy cannot protect one friend from publicity about the friendship disclosed by the other. Nor can that right truly protect autonomy in the decision to befriend another, because that decision is, by its very nature, dependent on the other's decision to return the friendship. Because friendship is not a purely private act, it should not be surprising that the judicial development of the right to privacy would bypass friendship entirely. If friendships are too public to enjoy the protections of the right to privacy, they are too private to enjoy the protections of the freedom of association. The Supreme Court has gleaned from the First Amendment's explicit protection of the "right of the people peaceably to assemble" an implicit protection of the freedom of individuals to associate with others.5 6 It seems beyond peradventure that this freedom of association would protect friendships as such. But, as it has developed in the Supreme Court, the freedom of association actually debases friendship. The Supreme Court cases do not recognize freedom of association in the abstract. Instead, the freedom has been justified in every case as an effective means of ensuring that other constitutionally protected activity freely takes place.5 7 The Court will protect the freedom of association where that freedom is thought indispensable either to speech or to privacy.5 8 Ever since Justice Harlan observed the "close nexus between the freedoms of speech and assembly," the right of association drew protection to the extent that it facilitated the exercise of other First Amendment rights such as the advocacy and advancement of political, economic, religious, or cultural 55. Whalen v. Roe, 429 U.S. 589, 599-600 (1977). 56. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958). 57. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). 58. See id. at 617-18. beliefs.59 It follows that associations such as friendships which are not necessarily based on the accomplishment of political, economic, religious, or cultural objectives are excluded as too insignificant for First Amendment protection. At the same time, the Supreme Court has found associational rights where the association reflected a personal decision otherwise protected by its privacy cases."° In Roberts v. United States Jaycees, the Court declared generally that the "Bill of Rights ...must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State."6 1 Despite this sweeping pronouncement, however, the freedom of association thus far has only been held to protect the right to choose one's spouse6 2 or to live with one's extended family.6 3 The relationships which the Court has found worthy of protection in this area have been limited to familial ones. The Court has never suggested that the freedom of association is broad enough (or narrow enough) to protect a non-filial and non-political association of friends. Professor Rhode has astutely observed that the Supreme Court's treatment of fundamental associations as either an extension of the "home or of the marketplace ... leaves many affiliations occupying an awkward middle ground; where any particular association will fall on a particular court's continuum is inevitably indeterminate."',, The relationship of friendship occupies such an awkward middle ground. A constitutional regime in which the recognition, much less the protection, of friendship is only "indeterminate" is a regime in which friendship is absent. II. A STRATEGY FOR THE RENEWED PRESENCE OF FRIENDSHIP A. The Strategy Developed 1. The Need for a Strategy The causes of the absence of friendship in law, philosophy, and literature may be difficult-even impossible-to isolate.6" Professor Sharp sees friendship's absence from literature as symptomatic of a modem "fear of sentimentality." 66 Professor Bolotin explains that friendship does not "fit into any of the modem systems of thought."6 At one pole of modem philosophy, "[t]here is no room for the generosity of true friendship in those doctrines which begin from the premise that man is naturally selfish.",6 1 Yet, at the "other pole of modem thought, our shiogphetsoffosroupnriviveartseal,anodr eevxecnlusniavteioanarle,labtrioonthsehrihpo.,o6d9 tend to make us lose Contemporary legal scholars, as well, are beginning to diagnose a fear of sentimentality throughout American law.7" They also have attempted to expose and dissolve the irreconcilable polarities in law and legal thought between individualism and community.7 If the individual and the community are antinomies throughout American law, then it is not surprising that relationships such as friendship which are neither purely individualistic nor purely communal occupy an awkward middle ground. Perhaps the law should respond to the absence of friendship from contemporary discourse by developing doctrine which expressly protects that relationship. The Supreme Court, for example, might instantly recognize a right to friendship. The law of gifts would promote, rather than discourage, gift-giving among friends. The law of torts would reward rather than punish the person who helps the friend in need. The law of contracts would assign value to non-monetary consideration among people. The law of agency and corporations would recognize duties of care and loyalty among friends, rather than merely between principals and agents. And the law of evidence would privilege communications between friends. Even if we agree that friendship should receive the highest social respect and protection, however, it may be that the best way for the law to promote that respect and protection is to leave friendship alone. The absence of friendship from law, by this view, is not necessarily a denigration of the value of friendship. It is conceivable that the law neglects friendship because that relationship is so natural or fundamental to 68. Id. 69. Id. 70. See, e.g., Hirshman, The Virtue of Liberality in American Communal Life, 88 Mich. L. Rev. 983, 992 (1990)(brilliantly arguing for a return of the classical virtue of liberality found wanting in American communities); Areen, A Needfor Caring,86 Mich. L. Rev. 1067, 1068 (1988)(finding a lack of caring legal decision-making); West, Submission, Choice and Ethics: A Rejoinder to Judge Posner, 99 Harv. L. Rev. 1449, 1450 (1986)(criticizing Judge Posner's attack on compassion); West, Jurisprudenceas Narrative: An Aesthetic Analysis of Modern Legal Theory, 60 N.Y.U. L. Rev. 145, 203 (1985)(finding a lack of sentimentality in patterns of legal thought). 71. See, e.g., R.M. Unger, The Critical Legal Studies Movement 63 (1988)(crystallizing critical legal critiques of dualities in liberal thought); R.M. Unger, Knowledge and Politics 81 (1975)(exposing liberal polarity between individual and community); Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1718 (1976)(exposing liberal duality between individualism and altruism); K. Karst, Belonging to America: Equal Citizenship and the Constitution 196 (1989)("The very idea of community implies at least that members are equal in their membership."); Michelman, Law's Republic, 97 Yale L.J. 1493, 1495 (1988)(responding to criticisms of duality in liberal society); M. Sandel, Liberalism and the Limits of Justice 60-61 (1982)(arguing for communitarianism). Americans that it need not be regulated. 2 Indeed, despite the apparent assault on friendship from law, philosophy, and literature, we still cherish our friendships. It is possible, therefore, that the legal regulation of friendship would itself debase that relationship. While this view reminds us that law is neither the source of all of our values nor the cure for all of our value crises, it is incomplete. The inverse relationship between the legal recognition of friendship and the social value in friendships which the view assumes is belied by the legal recognition of many rights which society continues to hold dear. The law's protection of the right to privacy, for example, has hardly stripped society of its natural affection for privacy. Nor can we dismiss the Supreme Court's failure to opine on the issue of friendship by suggesting that that issue is simply too fundamental to Americans. To ignore the decline of friendship in legal discourse would be to ignore the real role which the law does play in shaping and reflecting our values."' If the law does not create values, it at least inculcates or reinforces them. Similarly, those values are shaped by literature and philosophy. If law, philosophy, and literature continue to denigrate friendship, it cannot be long before each of us denigrates friendship as well. The resurrection of friendship, therefore, does require a strategy, but that strategy must be more subtle than mere advocacy of the judicial protection of friendship. Because friendship is absent from most contemporary literary, philosophic, and legal thought, the renewal strategy must draw upon, and include within its scope, literature, philosophy, and law. A Suggested Strategy: Literature's Return to Aristotelian Philosophy In order to obviate the perceived evil in the absence of friendship in literature, Wayne Booth has developed a strategy-albeit limited-for the literary resurrection of friendship. In his article, The Way I Loved George Eliot: Friendship with Books as a Neglected CriticalMetaphor,74 Booth appeals to Aristotle's particular categorization of the types of friendship as a method of categorizing literature. The literary critic, Booth suggests, should treat books as the philosopher treats friendships, evaluating them based upon the strength of the friendship which is created between the implied author and the implied reader." The litera72. I am indebted to Professor George Anastaplo for this insight and this argument that the law's neglect of friendship may indicate tremendous social respect for that relationship. 73. See, eg., R.M. Unger, Law in Modern Society 56-57 (1976)(regarding the societal beliefs which belie a society's commitment to the rule of law). 74. Booth, George Eliot, supra note 15, at 4. 75. See id. at 5. In contrast, Emerson treats friends as he treats his books. "I do not wish to treat friendships daintily, but with roughest courage. When they are real, they are not glass threads or frostwork, but the solidest thing we know." R.W. Emerson, Friendship, in The Norton Book of Friendship 519 (F. Welty & FLA. Sharp eds., 1991) [hereinafter Emerson, Friendship]. ture-friend, or literature-critic, can befriend three different types of books: the useful, the pleasant, and the good.7 6 The "useful" book, like the useful friendship, is narrow in purpose and short in duration. Aristotle writes that friendships based on "use" are easily dissolved, as people's needs are easily changed." The reader of a merely useful book, similarly, does not appreciate the work as a work, but only as a vehicle toward a short-term end. Cookbooks and diet books are modem examples of useful works, which are loved only so long as they are useful. Interestingly enough, these two types of books are the best-selling books in the Western world today.7" Not far behind in popular sales are works that are loved for the "pleasure" they offer. Friendships that are based purely on pleasure, Aristotle teaches, are common among young people.79 Like the friendships based on use, those based on pleasure are ephemeral, as the sources of pleasure change. A good mystery, pornography, and harlequin romances are examples of books which provide a kind of immediate pleasure for their readers. That pleasure, however, does not last. Rarely, for example, will an individual read a mystery story more than once, for the ending-the true source of pleasure-has been revealed. The story which gives immediate pleasure to the reader provides little long-term fulfillment. The relationship of author to reader created by the useful book and the pleasurable book is a limited friendship. 0 The reader of the cookbook appreciates the book only as a means of some other end, such as feeding the family. Reciprocally, the implied author of the cookbook does not wish the reader well, apart from the immediate preparation of food. The reader of the pleasure-book, in comparable fashion, appreciates the book because it activates pleasurable desires for a short time. The implied author of the pleasure-book, meanwhile, wishes no good upon the reader, only excitation. In neither the pleasure-book nor the useful-book, then is the book loved as a book, then, as an end in itself."1 The good book, by contrast, like the good friend, should be loved in proportion to its high worth. 2 Good friends, Aristotle claims, resemble each other in virtue8. 3 The fullest friendship, in classical thought, is a sharing of the quality of virtue between two virtuous individuals. The 1992] best friend, of course, will be useful and pleasant. But these qualities stem from the inherent use that a good man can be to others through his example of wisdom and the inherent pleasure that a good man gives to those who delight in his company. The pleasure and use that a good man provides are not ephemeral; rather, they realize well-wishing for a lifetime. Good friends wish well to each other by giving each other everlasting pleasure and utility. The good friend, however, is loved for his virtue. In loving a good friend for his virtue, Aristotle suggests, the lover becomes a good friend in his simultaneous love of virtue. In this respect, the good friend loves his friend as he loves himself. The love of virtue is the bond that unites the good friendship." In the best book, Booth proclaims, the love of virtue should unite implied-author with implied-reader. The good literary critic appreciates the pleasure and utility that the best books bring. That critic, in addition, should love the book as a book. The book should be loved in proportion to its ability to wish the reader well over a lifetime, for its ability to order the reader's values in a virtuous manner and for the inherent utility and pleasure that it provides. The good critic will thereby meet the good writer in good friendship. This formula for the return of friendship to literary discourse, however, is limited. Booth's attempt to recapture a hierarchy of moral values by which to judge literature belies his nostalgia and sentimentality for a centered universe. The recognition of Aristotelian friendship, in its pure form, is kerygmatic; it reveals Booth's false hope in the ability of man to find a unique word, a master name, or an ultimate concern. 5 Yet, even if Booth's attempt to resurrect friendship was philosophically sound, the scope of his resurrection would be limited. Confined to the author-reader relationship, Booth's application of Aristotle brings friendship to the literary forefront only after the work has been written. Friendship is the telos that he desires between critic and writer. As a critic, Booth is concerned with bringing friendship to the critic, thereby linking him with the literary creator. Although Booth's work is pleasant and useful, it neglects the vacuity of friendship actually within discourse. The restoration of friendship as a literary topic-and not a critical one-is difficult to accomplish short of telling each writer what to write about. In addition, filling the void of friendship within discourse is difficult to accomplish short of returning to a center no less false, or a concept no less kerygmatic, than Booth's Aristotelian friendship. 84. See id. at 196. 85. It therefore falls victim to the deconstructionist's very real attack on false structures of value. See, eg., J. Derrida, Speech and Phenomena and Other Essays on Husserl's Theory of Signs 159 (1973) [hereinafter Derrida, Speech and Phenomena] ("There will be no unique name, not even the name of Being. It must be conceived without nostalgia; that is, it must be conceived outside the myth of the purely material or paternal language belonging to the lost fatherland of thought."). The Literary Renewal Strategy Refined: Deconstruction Aristotle After Despite these difficulties in returning friendship to discourse, it nonetheless may be possible to request of literary, philosophic, and legal writers that they "display" friendship. If the writer-reader relationship cannot resurrect friendship in discourse, perhaps the writer-writer relationship can. Booth claims that every writer, through his work, engages in a relationship with the reader. While that relationship is idealized improperly by Booth in the form of friendship, the existence of a relationship is nonetheless plausible. The same writer who is capable of carrying on a relationship with a reader must also be capable of carrying on a "relationship" with another writer. Indeed, readers often write about their readings, and writers often read about their writings. The relationship between two authors through their works certainly is not a novel subject of inquiry. In Tradition and the Individual Talent, T.S. Eliot argues that a "really new" work of art alters every work that came before it in the ideal order that is literary tradition.86 Each book, Eliot suggests, affects and is affected by other books.87 The relationship of one book to the next is based on a shared role in the tradition. A more specific kind of relationship between authors develops every time an allusion is made. Auden's poem, In Memory of W.B. Yeats,8 8 for example, is dependent not only upon the existence of Yeats as a great poet, but upon the existence of many of Yeats's poems as well. A relationship develops between Yeats and Auden that is not sentient, but that is nonetheless a relationship. If friendship is to be returned to discourse, then this "relationship" between authors should be based on friendship. In particular, if friendship is to return as a value in legal discourse, then the relationship between authors of that discourse should be based on friendship. The authors of judicial decisions, for example, should write those decisions as if they were friends to other authors of judicial decisions. B. The Renewal Strategy Defended The return of friendship to legal discourse in this manner may be accomplished because of, not in spite of, the modem world's inability to accept a locus of value. This type of friendship is philosophically good, politically useful, and aesthetically pleasing. 1. The Philosophic Argument: Friendship Is Good The history of philosophic thought, which seems to denigrate gradually the value of friendship, unconceals the very question of friendship. 1992] The unconcealment of the problem or question of friendship in discourse can lead to an exploration of the various philosophic definitions of friendship throughout time. The return of friendship, on this philosophical level, can be accomplished through interlinear criticism of philosophic works about friendship. From this viewpoint, friendship can be discerned as a means toward truth. The question of friendship, unfolded throughout the history of philosophic thought, finds an answer in the notion of coincidence. The history of friendship in philosophic thought is the history of coincidence. As Booth's essay8 9 suggests, Aristotle held friendship to be a sharing of the quality of virtue between two virtuous individuals. That which coincides in two friends, therefore, is the love of the techne of virtue. For Aristotle, virtue is the ultimate concern, the unique name, or the universal signified. "[T]he truest form of justice," he writes, "is thought to be a friendly quality."' Friendship for the Greeks, then, is the coincidence of the love of the ultimate signified-Virtue-among friends. Friendship is a concern of political philosophy.9 1 Montaigne, who writes on friendship with the aplomb of Aristotle, posits that the soul is purified by the practice of friendship. Friendship is the consonance of wills. 92 Perfect friendship, Montaigne suggests, is indivisible; the wills of individuals share a spiritual wholeness. That spiritual wholeness is the ultimate concern of Montaigne and his sixteenth century philosophic epoch. 93 Hence friendship in his era is the coincidence of spirit among friends. Friendship is the concern of religion. When the ultimate philosophic concern for the spirit shifted to nature, the definition of friendship shifted as well. In Rousseau, perfect friendship can only be recalled from a pre-societal condition. Friendship is a "sentiment" which requires reciprocity; it is the refinement through education of natural pity.94 To be a friend, therefore, is to share sentiment or passion with another human being. Friendship is the coincidence of passion in two individuals; "compassion" is Rousseau's ultimate signified. In like manner, Emerson views friendship as a coincidence of tenderness and love in two human beings. 95 An appreciation for the underlying quality of nature among individuals is perfect friendship. From a world-view which upholds nature and sentiment emanates a defi1992] passed by the legislature. As such, the opinion asserts the superiority of the judiciary over the legislature as a source of authority. Indeed, Justice Peckham asks his readers to join in the fight against legislative hegemony. By asking the rhetorical question whether "we [are] all... at the mercy of legislative majorities?,' 26 3 Justice Peckham not only has in mind a negative response, he has in mind a defiant response. The question suggests that the judiciary and the people ("we") together are threatened by the power of "legislative majorities." The judiciary must be given sufficient power so that "we" are not at the mercy of legislative majorities. Despite its facial attempt to garner judicial strength, Justice Peckham's opinion ultimately fails to elevate the art of the law. It turns out that the judicial role is severely limited. If a statute is "within the power" of the state, Justice Peckham opines, it is valid-even if the "judgment" of the court be "totally opposed" to the law. 21 The question which it is the Court's role to answer is correspondingly limited: "Is [the legislation] within the police power of the State?"26 The Court is thus relegated to defining the power of a state. Because defining the police power of a state may include identifying the state's proper objectives in protecting the "safety, health, morals and general welfare of the public," 2'6 6 Justice Peckham views his defining role as one of "great importance.1267 Yet, the decision itself suggests that the state's police power is limited to protecting the "health" (as opposed to the equality) of its citizens.26 8 In subsequent cases, the Court will be confined to the mechanistic determination whether a state statute promotes health. Peckham further diminishes the role of the judiciary by elevating the competing techne of philosophy. As Holmes suggests in his dissent, the majority opinion embraces a philosophic position fashionable in its day. In his Social Statics, Herbert Spencer popularized the philosophic view that, with rare exceptions, every man should have the right to do what he wishes so long as he does not interfere with another's right to do the same. In Lochner, the "rights of individuals" to enter into contracts "upon such terms as they may think best" 2 9 are expressly made a part of the "liberty of the individual protected by the Fourteenth Amendment."2 70 Justice Peckham asserts that absent the result in Lochner, protection from "undue interference with liberty of person and freedom of contract [would be only] visionary. '27 1 Peckham's role is to make Spencer's philosophic vision into a legal reality. He nowhere questions the philosophy of laissez-faire. Nor does he question its transcendence. Instead, law is made entirely subservient to philosophy, indeed subservient to a fashionable philosophy. Holmes's dissent, by contrast, is "the greatest judicial opinion in the last hundred years"2'7 2 precisely because it elevates the art of law above the competing art of philosophy. Judge Posner has gone a great distance toward discovering why Holmes's dissent in Lochner has commanded such tremendous fame and respect. He observes that the dissent-like many of Holmes's opinions-is not a paradigm of formal logic.2 73 Many of its assertions are offered without citations to precedent and many of the citations are "inapposite." 2'7 4 Nor does Holmes even attempt to find authority for his position in the opinions of the many or in the laws of nature. Judge Posner justifiably concludes that the opinion "is not logically organized, does not join issue sharply with the majority, is not scrupulous in its treatment of the majority opinion or of precedent, is not thoroughly researched, does not exploit the factual record, and is highly unfair to poor old Herbert Spencer. '"275 But the dissent is hardly the "rhetorical masterpiece" which Judge Posner finds it to be.2 76 To the contrary, it is cacophonous, choppy and awkward. The "opening sally" which Judge Posner finds so effective because of the self-assurance with which it appears to have been made, is typical.2 77 We are told first that the case "is decided, 27 8 an arrestingly awkward use of tense. We are more fully told that the case is decided "upon" an economic theory,279 a phrase which either omits a key word such as "based" (i.e., decided based upon an economic theory) or mixes its metaphors. A case may "rest" upon an economic theory; but it cannot in precise linguistic usage be "decided upon" something. The sentence gets worse. We are introduced to "a large part of the country, '210 but we have no clue what the words "large" or "part" mean in this context. "Large" in number, stature, or significance? "Part" in geography, political sphere, or populace? Next, we are told that a "part" of the "country" does not "entertain" the theory which the "case is decided upon. ' 281' Because parts do not in the real world entertain decided-upon 1992] theories, the objective correlative for the metaphor is completely lost. And the impression of the sentence is not saved by its harmony. The c's of "case," "economic" and "country" are cacophonous. The conjunction of "large" with "part" is equally annoying. So too is Holmes's consistently inadequate referential language. Judge Posner finds in the language "If it were a question... " a subtle ethical appeal, which portrays Holmes as "slow to jump to conclusions."282 The portrayal no doubt was lost on Holmes's contemporary readership, most of whom knew that Holmes had in fact already embraced Herbert Spencer's economic philosophy.28 3 What is not lost on Holmes's readership (contemporary or otherwise), however, is the typical lack of clarity in the reference "it." The imprecision in language is made worse by the later inclusion in the same sentence of another "it" ("I should desire to study it further" "2)-which apparently refers to something other than the first "it." A similar lack of reference is used in the dissent's ultimatejustification for its author's lack of classic research: "It does not need research to show that no such sweeping condemnation can be passed upon the statute before us.",2 5 What is the "it" that does not need research? This lack of clarity may not detract from the opinion's power, but it certainly does not enhance its quality as rhetorical masterpiece. The point of this dissection of some of the language of Holmes's dissent is not to judge that language. Instead, the dissection shows that whatever power the dissent retains cannot be found in its rhetoric or style. Rather, Holmes's dissent is a good and powerful opinion because although it superficially reduces the political role of the courts, it brilliantly, subtly and successfully elevates the art of law above the competing art of philosophy. On the surface, the opinion seems to limit severely the courts' power to strike down laws which "embody" majority opinions. The opinion, however, actually limits severely the power of philosophy. First, Holmes generalizes away the most influential philosophers of his epoch. John Stuart Mill authored a strong defense of political and economic freedom as a means by which mankind may ultimately discover truth.2" 6 Charles Darwin authored an equally strong argument for the natural evolution of mankind toward greater survivability. Rather than confront these great thinkers of his day, however, Holmes confronts only a watered-down version of them. Herbert Spencer popularized the dominant philosophies of Holmes' epoch by using Darwin's theory of natural selection as the justification for an economically free society in which only the fittest survived. Accordingly, Holmes begins his dissent by claiming that the majority opinion rests upon "an economic theory" 282. Posner, Law and Literature, supra note 272, at 283. 283. Id. (citing Gordon, Holmes' Common Law as Legal and Social Science, 10 Hofstra L. Rev. 719, 740 (1982)). 284. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J.,dissenting). 285. Id. at 76. 286. See generally J.S. Mill, On Liberty (1859). rather than a philosophic theory. In so doing, he deflates (Kenosis), curtails (Askesis), and then generalizes away the strong philosophers of his day. But he goes further. After reducing philosophy to economics, Holmes then uses the device of metonymy to transfer a school of economic thought not only to a single person, but to a single work of a single person: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."2'8 7 Judge Posner argues that this line has become "one of the most famous in law"2 because the absurdity of the contrary proposition operates as "a substitute for proof." That may be so. But suppose Holmes had written instead: "The Fourteenth Amendment does not enact John Stuart Mill's On Liberty, or John Locke's Second Treatise." The notion that the authors of the Fourteenth Amendment may have enacted Mill's or even Locke's philosophy is not so absurd.28 9 What makes Holmes's proposition so absurd and ultimately so persuasive is that before he makes the proposition he has already reduced the strongest philosophies of his day to a single book with a "weird title, written by an Englishman."2 9 0 He first alludes to some "well-known writers,, 2 91 then reduces their views to a "shibboleth" of radical liberty and ultimately reduces the "shibboleth" to Spencer's book. 292 The attack on Herbert Spencer's Social Statics does operate as a substitute for proof-proof of the inferiority of philosophy to law. But Holmes is not even fair to Herbert Spencer. In his seminal law review article entitled "The Path of the Law,, 2 93 Holmes himself writes that "not even Mr. Herbert Spencer's Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."'2 94 In his later dissent, however, Holmes swerves Spencer's views by radicalizing them into the following formula: "[t]he liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others."2 95 Holmes thus makes use of each of Bloom's defense mechanisms to combat the anxiety of influence created by the competing art of philosophy. The dissent, however, does more than merely reduce the art of philosophy. Holmes also affirmatively elevates the role of law. He opines that the state may regulate life in ways that "we as legislators might think as 1992] injudicious. 2'96 When the judiciary ("we") acts "as legislators," its power may be limited. But the judiciary also acts as philosophers. Holmes writes that a state law can embody a "dominant opinion" so long as the law does not "infringe fundamental principles as they have been understood by the traditions of our people and our law."2 97 It becomes the judge's job to determine whether a dominant opinion infringes fundamental principles. Accordingly, it is the judge who has the power to discover and enforce fundamental principles-it is not the legislatures job, the people's job, or the philosopher's job. How does the judge discover fundamental principles? In the most important sentence of the dissent, Holmes tells us: "The decision will depend on a judgment or intuition more subtle than any articulate major premise. '"298 The judge's decisions regarding fundamental principles are based on judgments more subtle than the major premises or general propositions of philosophy or politics. What is more, the judge's insights into fundamental principles are deeper than language itself-more subtle than an articulate view of those principles. The discovery of truth, of fundamental principles, is the result of an "inarticulate and unconscious judgment" 9 9 made by a court of law. Holmes's dissent in Lochner is the greatest opinion in the last one hundred years because it elevates the art of law above all competing arts as a method of obtaining truth. THE RENEWAL STRATEGY APPLIED TO CONTEMPORARY DISCOURSE: THE SEARCH FOR FRIENDS IN THE AGE OF THE LAW-AND-LITERATURE DEBATE Justice Story argued for law's supremacy by elevating the case as a datum of truth. Similarly, Fielding and Richardson argued for the supremacy of literature by elevating the novel as a datum of truth. As case-writer or novelist, the judge and the literary creator respectively overcame the anxiety of influence created by modern natural-law philosophers. If truth is found in natural law, then judges are able to display truth in their own cases and to discover truth in the cases of their friends, the predecessor judges. To the judges' claim to truth, however, Richardson and Fielding respond that the literary artist, through the novel, also portrays a case, from which truth can be gleaned. As the anxieties of philosophic influences shifted with time, so too did the strategies of judicial and literary elevation. In Benjamin, we see a paradigm of philosophic influence. Scholem's religion and Brecht's historical materialism each flooded Benjamin's art.? He responded by elevating the art of literary criticism to new heights, arguing that language had a religious and revolutionary quality which only the literary critic 296. Id. 297. Id. at 76. 298. Id. 299. Holmes, The Path of the Law, 10 Harv.L. Rev. 457, 466 (1897). 300. See H. Arendt, Introductionto Illuminations, supra note 9, at 13-15. could tap. Justice Holmes felt the same anxieties of philosophic influence. Like Benjamin, he was still influenced by legal philosophers who assigned to law a quasi-religious quality. Yet, like Benjamin, Holmes also felt deeply the influence of historicists who argued that legal decision making is nothing but the causal outgrowth of the economic, social, and political factors of the day. In his pre-Erie and Lochner dissents, he brilliantly swerved these anxieties of influence by first elevating the case"[g]eneral propositions do not decide concrete cases" 301-and then elevating the judge who balances economic, social, and political factors before creating the law which decides the case. It is the judge, though, and not the philosopher or artist, whose judgment goes beyond general propositions and articulable premises to attain the just result. The judge, thus, becomes a social critic. Even those who disagree with the results of Justices Holmes's and Story's decisions must acknowledge their relative greatness. The opinions are deemed great precisely because they are arguments for the greatness of their authors. This evaluation of the works of Holmes and Story, of course, benefits from hindsight. Whether it is possible to evaluate contemporary judges and their decisions from the same criteria is a question which still needs to be addressed. The answer to the question requires an examination not only of current judges and their decisions, but also of the sources of their anxieties of influence. The development of arguments for the supremacy of law and the supremacy of literature has led naturally to a "law as literature"30 2 debate. Judges today suffer, and in at least the near future will continue to suffer, therefore, from the anxiety of influence created by literature and the philosophy of language. No contemporary philosopher is capable of generating more anxiety of influence than Jacques Derrida. Accordingly, the good judicial opinion in this epoch must necessarily channel the anxiety of influence created by Derrida's philosophy of language into an elevation of the art of law. In evaluating contemporary judges, therefore, this section must first describe Derrida's attempt to elevate the art of linguistic philosophy, and then describe the judiciary's responsive effort to elevate the art of law. Unfortunately, the judiciary thus far has been unable to channel Derrida's strong anxiety-creating influence into an elevation of law. A. The Influence of Derrida If Fielding and Richardson argued that the novelist displays truth and Benjamin argued that the literary critic is a vehicle of positive social change, then Derrida demonstrates that language is the playground of truth. Derrida's depiction of language as the playground of truth, how1992] ever, is itself a masterful channeling of the anxiety of influence from alternative truth-seeking techne into an elevation of the philosophy of language. Derrida's strategy involves a creative misreading of many of the sources of his anxiety of influence, and of the sources of the anxiety of influence for all contemporary thinkers in the Western world. While these sources surely include Freud, Hegel, Marx, and Nietzsche, Derrida embodies the tradition of Western philosophy in the person of Ferdinand de Saussure. Derrida was overwhelmed by Saussure's influential semiology-a "science that studies the life of signs within society."3 ' A "sign" is the conjunction of a "signifier" and a "signified." 3" The signifier is a phoneme, or the sound of the spoken word. The signified is the concept which the sound of the spoken word conjures in the minds of the speaker and the listener or the community of speakers and listeners. Both the signifier and the signified are arbitrary; they develop differently depending upon time, location, and culture. The plainest example of the arbitrary quality of the signifier and the signified is the undeniable fact that a sound heard among French-speaking people will not conjure the same concept in those people as will the same sound heard among Englishspeaking people. Languages are different and so too are the relationships between signifiers and signifieds. More importantly, the existence of the sign depends upon differences within a linguistic system. A signifier conjures a signified only if the other signifiers within a language are different from that particular signifier. For example, the phoneme of signifier "chair" communicates the concept of signified "chair" only because the signifier "chair" sounds different from other signifiers in the English linguistic system such as "bench" or "couch." Syntax and context create greater differentiation and thus greater communication. Hence, "a comfortable chair" conjures a different signified from "an endowed chair." Saussure's conclusion from these points is that "[1]anguage is a system of interdependent terms in which the value of each term results solely from the simultaneous presence of others."30 5 In other words, a "linguistic system is a series of differences of sound combined with a series of differences of ideas."', Language simply does not and cannot exist outside of a system: "language has neither ideas nor sounds that existed before the linguistic system."3 "7 Because language can only be understood as part of a structure, Saussure's science of signs requires a structural analysis. In Saussure's semiology, Derrida finds the apotheosis of the failure of 303. F. Saussure, Course in General Linguistics 16 (Bally & Sechehayc eds., Baskin trans. 1959) (emphasis in original). 304. Id. at 65-67. 305. Id. at 114. 306. Id. at 120. 307. Id. all of Western philosophy. In Of Grammatology,308 Derrida begins by describing the entire "history of (the only) metaphysics" as the attempt to assign the "origin of truth in general to the logos."30°9 From Plato to Heidegger, Western philosophers, despite all of their insignificant differences, have shared one significant assumption: truth is found in the spoken word, the word of God, the voice of reason, or the universal signified. The center or structure which has informed all Western philosophy to date is the belief in the truth of the logos, the spoken word. Saussure's new science of the structure of signs merely imposes that same center on language itself. Saussure is the epitome of logocentrism. He gives the spoken word primacy over the written word in the linguistic structure. If, as Derrida suggests, Saussure represents the epitome of the logocentrism of Western thought, then Derrida may battle his anxiety of influence from all that thought by transcending Saussure. Indeed, he attempts to do so. Den-ida claims to step back from Saussure and see what "Saussure saw without seeing, knew without being able to take into account." ' The system of languages which Saussure describes has produced "logocentric metaphysics," which itself depends on a definition of "being" as fixed or centered "presence." 31' This logocentrism shackles Saussure and his successors from exploring writing rather than speech. Derrida deflates both Saussure and Western philosophy when he declares: "This logocentrism, this epoch of the full speech, has always placed in parenthesis, suspended,and suppressed for essential reasons, all ... reflection on the origin and status of writing. '312 Derrida thus seeks to replace Saussure's already sophisticated science of signs with a new, transcendent science of the origin and status of writing. This new science of writing is called Grammatology. In fact, in one of the most overt responses imaginable to the anxiety of influence, Derrida expressly substitutes his new science for Saussure's semiology: I shall call it [grammatology].... Since the science does not yet exist, no one can say what it 3w13ould be; but it has a right to existence, a place staked out in advance. Derrida thereby explicitly stakes out space for himself as a philosopher apart from his precursor, Saussure. Derrida's new science of grammatology studies writing, but it is not writing in the traditional sense. In the logocentric tradition, writing is merely instrumental; it is an alphabetic script which conveys the concepts embodied in the spoken word. Derrida's post-structuralist writing or ecriture is the a prioriprocess by which language itself is produced. Writing is not just a system of notation used to describe conduct; it is the 308. See Derrida, Of Grammatology, supra note 5. 309. Id. at 3. 310. Id. at 43. 311. Id. 312. Id. 313. Id. at 51. "essence" of conduct, of the "totality" which makes all conduct possible.3 14 Because writing is the essence of all conduct, including all art forms, the grammatologist is elevated above all of those art forms.31 5 Even before humanity discovered and described what it means to "be," or to be human, the written mark (the gramme or grapheme) existed.31 6 By studying the written mark, therefore, grammatologists study the "irreducible atom" or "element" of all human experience. 3 7 That study reveals the "origin of meaning in general."3'18 Hence, Derrida's science is not merely a new science which stands next to other sciences such as semiology. Grammatology is the supreme science; a science which has as its subject the study of the origin of mankind's effort to describe meaning. Ultimately, "what writing itself... betrays, is life."'3 19 Derrida thereby channels the anxiety of influence from the entire logocentric tradition of Western philosophy by demonstrating that his techne-the new science/ art of grammatology-puts the lie to all prior scientific, artistic, political, philosophical, and legal claims to truth. But Derrida's elevation of grammatology is not limited to prior competing techne. Instead, his attack on logocentrism is a fortiorian attack on any imagined centers, systems, or orders of understanding. All such systems are necessarily built around an assumption about what is the same in human existence. But for Derrida there is only difference. When the French speak the word "differance," at least three meanings are suggested: (1) to disperse; (2) to defer or to postpone; and (3) to be unlike.320 Derrida captures all of these meanings and, at the same time, points to the absence of any of these meanings. Lest the concept of difference become yet another false center, system, or order, Derrida declares that it is the absence of all such centers, systems, or orders: "It is not a being-present, however excellent, unique, principal, or transcendent one makes it. It commands nothing, rules over nothing, and nowhere does it exercise any authority."32 More dramatically, difference describes the inability of signifiers to produce or present the concepts or articles which they purport to signify. When the cluster of signifiers "endowed chair" are spoken together, they promise to produce a concept in the listener's mind. But what they really convey is difference: (1) they disperse or scatter into many possible meanings; (2) they only defer or postpone the production of the thing referred to; and (3) they are unlike other clusters such as "comfortable chair." Thus, far from conveying meaning within a system of language, Saussure's "sign" is a playground 314. Id. at 9. 315. See id. Derrida refers to cinematography, choreography, pictorial, musical, sculptural, military, political, and athletic activities all as forms of "writing." 316. See id. 317. Id. 318. Id. 319. Id. at 25. 320. See V. Leitch, Deconstructive Criticism 41 (1983). 321. Derrida, Speech and Phenomena, supra note 85, at 153. of difference. If language is a playground of difference, then so too must be any code322or any philosophic, political, scientific, or artistic "system of reference. Although difference purports to be apolitical ("it rules over nothing") 323 and aphilosophical ("not a being-present"), 324 the science of difference requires the deconstruction of all political and philosophical structures. Derrida's grammatologists tortuously follow in any language, code, or system of reference the trace of difference. In so doing, they necessarily expose the centers or structures which underlie every philosophic or political regime. But neither the exposure nor the deconstruction of false centers, for Derrida, requires their elimination. To the contrary, difference suggests and requires for its own legitimacy its own opposites. Difference, therefore, requires at least three forms of non-difference: (1) a scattering or dispersal, but a scattering or dispersal of something called meaning; (2) a delay or postponed production of a thing signified, but the presence of that delay or postponement and the presence of the perception of its delay or postponement; and (3) an unlikeness which assumes an understanding of likeness or sameness or coincidence. Because difference requires the absence of difference, grammatologists who perform the art or science of deconstruction require structure. The only pernicious structure from Derrida's point of view, therefore, is one that does not permit an inquiry into the play of differences within itself. Structures are acceptable so long as they do not close the human mind to the possibilities of their absence. If Derrida's philosophy of writing, or difference, leads to any political view, it is the view that all structures should be fluid or plastic enough to be shaped by the constant inquiry into the play of difference which the structures permit. Hence Derrida brilliantly elevates his science over politics and philosophy. Grammatology is the art/science which puts the lie to all other arts and sciences. But grammatology also recognizes that it needs some structure, albeit fluid and plastic, for its very existence. Conveniently, Derrida's difference necessarily requires just enough structure to keep his new techne going. B. Judge Posnerand ContemporaryAnxiety In its elevation of grammatology, Derrida's philosophy wages a frontal attack on all competing techne, including the art of law. If contemporary judges hope to keep the art of law on the lofty plane where Justices Story and Holmes have placed it, they must confront the anxiety of Derrida's influence. Although some judges no doubt have no awareness of Derrida's work, they all show traces of his influence. United States 322. Id. at 141. 323. Id. at 153. 324. Id. Court of Appeals Judge Richard Posner, however, has expressly confronted Derrida's influence. Because Judge Posner's work both epitomizes acute Derridean influence and suggests possible strategies of channeling that anxiety, that work is analyzed in this section. As his opinion and those of the Supreme Court in the Dynamics case show, however, none of the typical styles of contemporary judicial decision making successfully channels Derrida's influence into an elevation of the techne of law. 1. Judge Posner In his books Law and Literatur3e2 5 and The Problems of Jurisprudence,32 6 Judge Posner directly confronts Derrida and deconstructive literary criticism.3 27 His first mechanism of defense against Den-ida is to define deconstructive criticism narrowly. He describes all of Derrida's philosophy as an effort to expose "the non-communicative aspect of language" and the self-referential quality of all texts.3 2 Second, Judge Posner deflates Derrida by calling "too obvious" the notion that language can be "dense and refractory."3'2 9 Third, Judge Posner argues that Derrida's obvious and narrow points have "obscure" or "remote" relevance for law: Literary texts may or may not be self-referential and (if the former) therefore incoherent, but it would not follow that a legal text was selfreferential and therefore incoherent too; the purposes and techniques of authors of literary texts are different from those of the authors of legal texts. 330 But Posner's strategy for immunizing law from Derrida's philosophy by arguing that the "purposes and techniques" of legal texts differ from those of literary ones is unsuccessful. First, Judge Posner nowhere defines a legal text or a literary text. Because he does not define a legal text or a literary text, Judge Posner cannot categorize the different purposes or techniques on which he bases his strategy of separation. Second, even if he had defined a legal text, his suggestion that its drafters have purposes and techniques different from those of the drafters of literary texts is unpersuasive. Apparently, drafters of legal texts such as the framers of statutes or constitutions are different from drafters of literary texts because their intent is to communicate their will to judges, and their technique is to use transparent language to do so. No support is given for these assertions. As Stanley Fish has made abundantly clear, 325. Posner, Law and Literature, supra note 272. 326. R. Posner, The Problems of Jurisprudence (1990) [hereinafter Posner, Problems]. 327. See Posner, Law and Literature, supra note 272, at 211-20; Posner, Problems, supra note 326, at 153-57. 328. Posner, Law and Literature, supra note 272, at 213. 329. Id. at 214. 330. Id. at 215. no support exists.3 31 Even the drafters of statutes and constitutions do not have as their sole or primary purpose the communication of their will to judges. Assuming their purpose could be known (or is even relevant), the drafters of such legislative or constitutional commands must also have in mind some communication to the people who are, and will in the future be, subject to those commands. At this point, at least, the purposes of the creator of the literary and legal text coincide; poets and legislators alike seek a popular and an influential audience for their language. Moreover, Judge Posner defines the field of legal drafters too narrowly. Ironically, he excludes himself and all other judges from that field. But Judge Posner would not argue that his purpose in writing opinions is to communicate his will to other judges. Even if that were his purpose, it would not distinguish his intention from that of the poet. Nor does the technique of transparent language separate the legal from the literary text. Whether by accident or by design, legal texts are more often ambiguous than they are clear. If a text is clear at all, it is because its authorlike Hemingway-has adopted a style of plainness. Third, Judge Posner's argument ultimately fails because it is merely consequentialist. He argues that if deconstruction of legal texts were permitted, then there would be no way for drafters of legal texts to communicate their wills to judges.33 2 While he may recognize the legal difficulties which would arise if Derrida is correct, Posner does not dispute that he is correct. His consequential argument is tantamount to an argument for willful blindness; Derrida may be right, but he is too dangerous, so let's just ignore what he says. That is not an effective strategy. Finally, by misreading Derrida, Judge Posner fails to appreciate what it is that Derrida thought law and literature had in common. Law is not like literature because they both are truly "non-communicative." Nor is law like literature because they both are self-referential in the sense that they have as their true subject their own non-communicative nature. Instead, Derrida's insight, among many, is that law and literature have in common with all language the absence of a single point of reference. Law, like literature, cannot be reduced to a center; it cannot be explained as part of a system or a structure. Rather, law, like literature, is only the play of differences. This does not mean that communication is impossible. But it does mean that all attempts to rationalize, interpret, explain, justify, or systematize law and literature are the product of human engineering. Those efforts cannot claim any true success. Recognizing that all interpretations of law and literature are only the 1992] product of human engineering, however, does not require the abandonment of the effort. To the contrary, because for Derrida all human conduct is writing or ecriture, and because interpretation is one form of writing, interpretation must be a truly human act. A regime that encourages interpretive acts must, therefore, encourage truly human acts. Only the regime which prevents or discourages acts of interpretation presents a danger of closing the human mind. The implications of Derrida's philosophy for law and society are not, as Posner simplistically assumes, the abandonment of all structure and communication. Derrida's philosophy instead suggests a legal structure which not only protects freedom of communication, but also is fluid enough to be altered by the communication which it protects. Judge Posner does not deny these insights. But, rather than shape his elevation of the art of law around Derrida's undenied insights, Judge Posner ultimately tries to protect law by hiding it from those insights. He and his foremost contemporaries on the bench have simply forged ahead in the face of Derrida's philosophy. They have built their new methods of interpretation around various old or borrowed systems and in doing so have failed to elevate the art of law. The various judicial opinions written in the case of CTS Corp. Y.Dynamics Corp. ofAmerica,33 3 including that of Judge Posner, present outstanding examples of this failure. They not only denigrate their own role and that of their strongest predecessor judges, but they also completely fail to channel the anxiety of influence created by Derrida and deconstruction. The issue framed was whether the State of Indiana's anti-takeover legislation33 4 was unconstitutional because it was either preempted by the Williams Act33 or violative of the "dormant" Commerce Clause.3 36 In its majority opinion, the Supreme Court argued that Indiana's Control Share Acquisitions statute was not preempted by the Williams Act because compliance with both the state and the federal law was not impossible, and the purposes of the state law were not inconsistent with those of the federal one.337 In finding that the statute also did not interfere with Congress's power to regulate interstate commerce, the majority reasoned that it (1) did not on its face discriminate against non-Indiana citizens, (2) did not create multiple or inconsistent burdens on interstate commerce, and (3) fostered local benefits which outweighed any burdens on interstate commerce.338 The Supreme Court's majority opinion denigrates the art of law in a manner typical of contemporary decisions. Justice Powell's opinion for the Court is a quintessential act of judicial balancing. 3 39 Even in its preemption analysis, the majority balances the benefits it finds in the statute against its impediments to the "accomplishment and execution of the full purposes and objectives of Congress. ''3' The majority acknowledges that Indiana's statute does in fact favor incumbent management to the detriment of out-of-state acquirors at least by delaying the consummation of tender offers and making them more expensive. 34 1 The Court makes its own judgment, however, that the delay is not significant enough to upset the purposes of Congress as expressed in the Williams Act. It even expressly offers its own policy views: "In our view, the expenses .. . fairly are charged to the offeror. ' 342 Leaving aside the Court's pretense of ascertaining the full purposes and objectives of Congress, its particular balancing of political and social interests denigrates its own authority. First, the interests which the Court balances are hardly fundamental. The issue is whether, on balance, the Indiana statute will serve more than hinder the congressional purposes underlying the Williams Act. Second, the actual weighing of interests is not serious. Rather than draw on a full evidentiary record or a body of empirical evidence, the Court simply asserts that the "strategic advantage" which the brand new statute gives to incumbent management will have "little 34 3 significance., This type of narrow interest-balancing is more acute in the Court's treatment of the constitutionality of Indiana's anti-takeover statute under the Commerce Clause. After concluding that the statute does not on its face discriminate against interstate commerce because it applies equally to both residents and non-residents of Indiana and does not create a risk of inconsistent regulatory burdens, the majority engages in a classic balancing test. The statute is not unconstitutional, the Court concludes, because the burdens it imposes on the interstate market for corporate control are outweighed by its purported benefits to the shareholders of Indiana corporations. 3 " But this balancing effort, like the preemption 338. See id. at 87-94. 339. See, e.g., McFadden, The Balancing Test, 29 B.C.L. Rev. 585, 603-14 (1988) (thoroughly and insightfully tracking the ascendancy of the balancing test); Aleinikoff, ConstitutionalLaw in the Age ofBalancing, 96 Yale L.J. 943, 988, 993 (1987) (describing the "widespread use of balancing" as "doctrinally destructive nihilism" because it neglects the text of the Constitution (quoting New Jersey v. T.L.O., 469 U.S. 325, 369 (1985) (Brennan, J., dissenting))). 340. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 79 (1987) (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 341. See id. at 82 n.7. 342. Id. 343. Id. 344. See id. at 89-94; see also Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (stating a general rule that an even-handed state statute which only incidentally effects analysis which precedes it, implicitly denigrates the role of the judge as well. The battle between local shareholder benefits and the shifts in corporate control is not a fundamental, philosophical, or political one. If it is an economic battle, then the Court performs its balancing without any empirical care. Hence, the form of the Court's balancing analysis implicitly denigrates its own role in decision making. But Justice Scalia concurs separately in the judgment explicitly to denigrate that role further. He describes the Court's balancing act as "standard practice" and then declares: "such an inquiry is ill suited to the judicial function and should be undertaken rarely if at all."" The balancing inquiry is ill-suited to the judicial function in part because, as Justice Scalia writes: I do not know what qualifies us to make that judgment--or the related judgment as to how effective the present statute is in achieving one or the other objective-or the ultimate (and most ineffable) judgment as to whether, given importance-level X, and effectiveness-level worth of the statute is "outweighed" by impact-on-commerce ZY.,3 t6he Apparently the Court is incapable even of weighing parochial interests such as shareholder welfare and corporate control shifts. If the Court is unqualified to weigh local interests, it certainly is unqualified to weigh fundamental values. Although he reached the opposite result, Judge Posner's opinion for the Court of Appeals in Dynamics 347 similarly denigrates the role of judges. Like the Supreme Court majority, Judge Posner frames both the preemption and the commerce clause issues as balancing tests. The Control Share Act is preempted if it upsets the balance which the Williams Act strikes between incumbent management and potential acquirors; 34 it violates the Commerce Clause if its burdens on the "interstate market in securities and corporate control" outweigh its putative local benefits."49 Judge Posner simply struck those balances differently from the Supreme Court majority. Unlike that majority, Judge Posner predicted that the Indiana statute would be a "lethal dose"35 for tender offers, thereby unconstitutionally upsetting the Williams Act's balance between offerors and targets. He also predicted that the burden which the statute would impose upon interstate tender offers would be "direct, intended and substantial," while its benefits to Indiana residents would be "trivial or even negative." ' Calling the question "all a matter of balancing,"352 Judge interstate commerce will be upheld unless the burden on commerce is clearly excessive in relation to the local benefits). 345. Dynamics Corp., 481 U.S. at 95. 346. Id. 347. Dynamics Corp. of Am. v. CTS Corp., 794 F.2d 250, 260-64 (7th Cir. 1986), rev'd, 481 U.S. 69 (1987). 348. See id at 262. 349. Id. at 264. 350. Id. at 262-63. 351. Id at 264. Posner accordingly struck down the Indiana statute on Commerce Clause grounds as well. Judge Posner's balancing is as parochial and flippant as is the Supreme Court's majority. He weighs the statute's immediate socio-economic burdens against its immediate socio-economic benefits. But he expressly admits the lack of any empirical basis for his balance. His opinion instead only "assume[s]" that CTS's shareholders generally are non-residents of Indiana, "doubt[s]" the statute's local benefits and predicts that no tender offer will run the statute's "gauntlet."3'5 3 It is not an elevation of the judicial art to portray judicial decision makers as parochial predictors. That Judge Posner and the Supreme Court majority predicted the parochial effects of the statute so differently seems to support Justice Scalia's critique.35 4 If reasonable judges can reach such different conclusions about the costs and benefits of a statute, then the balancing test itself must allow for arbitrary decision making and lead to unpredictable results. Yet, Justice Scalia's attack is not based on the consequences of judicial balancing; rather, it is based on the competence of judges. He argues that judges are not even qualified to balance mundane interests. Typical of contemporary judges who reject balancing, however, Justice Scalia offers no successful strategy of judicial elevation to take its place. In Dynamics and elsewhere,35 5 Justice Scalia argues that vague, ad hoc balancing tests should be replaced by objective, bright-line tests. Justice Scalia generally derives his so-called bright-line tests from two types of sources: plain language or tradition established through pre-balancing case law. Both sources are tapped in Dynamics. First, Scalia would decide the preemption issue without reference to the tough issues of the congressional purpose underlying the Williams Act. Rather, he finds in the plain language of the Williams Act's anti-preemption provision sufficient grounds for validating the statute. Second, he would decide the Commerce Clause issue without balancing interests. Instead, he would apply the purported bright-line tests of discriminatory purpose and inconsistent regulatory burdens developed before the age of balancing.35 6 The comfort which Justice Scalia suggests judges may take in those clear rules of decision is cold. The myth of an objective interpretation of something called plain language in any significant statutory or constitutional provision has been dispelled not only by Derrida. Judge Posner 352. Id. at 263. 353. Id. at 263-64. 354. See CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (Scalia, J., concurring). 355. See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 108-13 (1987) (Justice Scalia writes separately to reject a balancing test approach to issues of personal jurisdiction in favor of a bright-line test derived from the tradition established before the balancing cases). 356. See Dynamics Corp., 481 U.S. at 95-96. himself joins a long list of scholars in rejecting Justice Scalia's implicit assumption that language can be plain and that lines can be bright.3 5 ' Similarly, Justice Scalia's retreat to pre-balancing rules of decision provides only false safety for judges. For example, the bright-line rule which informed the Commerce Clause cases before balancing took over may be stated as the following: A state statute is unconstitutional if (1) its purpose is to treat non-residents differently from residents or if (2) it creates a risk of inconsistent state regulations. 358 Because the second alternative basis for unconstitutionality clearly requires the judiciary to predict socio-economic risks, it is prone to the same attack that Justice Scalia levels upon balancing. And because the first alternative basis for unconstitutionality requires the judiciary to divine the true purposes of the legislature, it is prone to the same attack that Justice Scalia levels upon the majority's effort to find the congressional purposes underlying the Williams Act. The ability of these rules to constrain arbitrary decision making is undermined by Justice Scalia himself. The various opinions in the Dynamics case thus denigrate the art of judicial decision making by reducing the role of the judge to balancer of parochial interests, by suggesting that the judge is incompetent even to strike that balance, and ultimately by signaling a retreat to dated rules of decision which provide a patently false illusion of clarity. But the contemporary denigration of the judicial role manifest in the Dynamics opinions is still more subtle. Each of those opinions displays tremendous enmity for a great precursor judge and friend, Justice Holmes. The majority's statement that the "Constitution does not require the States to subscribe to any particular economic theory, ' 359 and Justice Scalia's statement that a "law can be both economic folly and constitutional," 3" are both uncited allusions to Justice Holmes's statement in his Lochner dissent that a "constitution is not intended to embody a particular economic theory."3 6 ' At first blush, the references to Holmes's Lochner dissent seem completely appropriate. In that dissent, Holmes suggested that the states have the constitutional power to regulate the bakery industry, even where the regulation might be inconsistent with an economic theory which embraces freedom of contract. Similarly, the majority and concurring opinions in Dynamics suggest that the State of Indiana has the power to regulate its own corporations, even where the regulation might be inconsistent with an economic theory which embraces the free interstate movement of assets to their highest valued uses.3 62 By analogy, Mr. Richard Posner is the contemporary version of 357. See Posner, Problems, supra note 326, at 262-69, 299. 358. See Dynamics Corp., 481 U.S. at 95 (citing Regan, The Supreme Courtand State Protectionism: MakingSense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1094-98 (1986)). 359. Ia at 92. 360. Iaoat 96-97. 361. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J.,dissenting). 362. See Dynamics Corp., 481 U.S. at 83, 95. Mr. Herbert Spencer. The affinity between the Dynamics opinion and the Lochner dissent is only superficial. In Dynamics, the assertion that the Constitution does not require the "states to subscribe to any particular economic theory '3 63 is used as an excuse for the abandonment ofjudicial decision making. To paraphrase Justice Scalia's opinion, a judge may think, based on experience, education, and even intuition, that the Indiana law is "folly," but that judge is nonetheless incapable of making a judgment because the Constitution allows the states to be wrong. Justice Holmes's assertion that "a constitution is not intended to embody a particular economic theory," ' by contrast, is used as a justification for unbridled judicial decision making. To paraphrase Justice Holmes, a judge should not be enslaved by any particular economic theory; instead, the judge must be free to reach a judgment about whether a state statute would "infringe fundamental principles" based on "a judgment or intuition more subtle than any articulate major premise. 3' 65 What a judge does is "more subtle" than the application of economic philosophy. 66 For the Dynamics majority and Justice Scalia, however, judicial decision making should be based on something less subtle than any articulate major premise; it should be based on slavish adherence to a state's judgment. This fundamental difference between Justice Holmes' views and those of his contemporary counterparts regarding the power and competence of judges is further evidenced by subtle shifts in the language of the opinions. The Lochner dissent makes a timeless and universal claim: "a" constitution (not just the United States Constitution) generally is "not intended" to embody "a" particular economic theory. In Dynamics, there is no doubt that "the" United States Constitution is the only judicial concern; that particular constitution lacks particular language requiring the states to adhere to a particular economic theory. More significantly, the Dynamics majority interjects the "States" into Holmes's formulation. It is the states which are not required to adhere to an economic theory. While Justice Holmes may well have agreed with that assertion, his subject in the Lochner dissent was not states, but judges. In that dissent, it is the judges who are not required to adhere to a particular economic theory. Finally, in perhaps the most revealing transformation of the Lochner dissent of all, Justice Scalia creatively misreads Justice Holmes's assertions regarding the legitimate process of judicial decision making. For Holmes, a judge's decisions are more "subtle" than "articulate" premises.36 7 They are deeper than language itself. In direct contradistinction, Justice Scalia declares that judges are not qualified to make the 363. Id. at 92. 364. Lochner, 198 U.S. at 75 (Holmes, J., dissenting). 365. Id. at 76. 366. Id. 367. Id. "[ujltimate (and most ineffable) judgment"3'6 8 regarding the balance of parochial interests. A judge's decisions cannot penetrate language. Judges cannot make "ineffable" decisions. Not only do such decisions denigrate a great friend in Justice Holmes, they also do not begin to confront the legitimate philosophic critiques of judicial decision making implicit in Derrida's work. They respond to Derrida's influence by continuing to balance local interests without recognizing the fundamental contradictions in a regime which creates petty tensions, by embracing the structure of economic efficiency as an alternative method of decision making without recognizing the fundamental contradictions within that substitute structure, or by returning to the womb of language or tradition without recalling that all interpretations of language or tradition are creative. Hence, the Dynamics opinions, in a manner typical of contemporary judicial decisions, fail to elevate the art of the judge. They are self-denigrating (not self-effacing), they denigrate a great friend in Justice Holmes, and they do not channel the anxiety of influence created by Derrida and other philosophers of language. Dynamics Rewritten: A Possible Model of Friendship Indiana's Control Share Acquisition Act regulates the hostile acquisition of controlling shares of Indiana corporations through the tender offer device. The statute was proposed, drafted, and passed by the Indiana legislature in the midst of a hostile tender offer for an Indiana corporation. It was proposed and drafted by one of the law firms which currently represents the management of the Indiana corporation subject to the hostile bid. Management "opted-into" the statute as soon as it was passed as one of its many defenses to the hostile bid. The bidder-Dynamics-has sued to enjoin the statute's operation. At least in this case, therefore, the statute has had an adverse effect on an out-of-state, hostile bidder for an Indiana corporation. In keeping with its role, Dynamics challenges the statute on two grounds which fit neatly into our established constitutional doctrine: (1) the state statute is preempted by the Williams Act, and (2) the state statute interferes with Congress' power to regulate interstate commerce. Dynamics argues that the Indiana statute is preempted because it upsets the purpose of Congress to strike an even balance between incumbent management and hostile bidders; it violates the dormant Commerce Clause because it unconstitutionally interferes with the in368. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (emphasis added). terstate market for corporate control. CTS argues to the contrary that the statute is consistent with congressional purposes because it protects shareholders of Indiana corporations against both incumbent management and the hostile bidder, and does not unconstitutionally discriminate against interstate commerce. Both arguments are plausible. But we are unable to determine with certainty congressional purpose, or to predict what the full effect of the Indiana statute will be on interstate commerce. Based on our collective experiences and our knowledge of the facts of this case, we believe that the Indiana statute does favor management over hostile bidders. Whether we decide that this unevenness violates the Williams Act or interferes with interstate commerce depends on our own judgments about whether favoring management over hostile bidders is salutary. We have considered carefully the costs and benefits of the recent surge in takeover activity throughout the land. We understand that there is a strong economic philosophy which embraces hostile tender offers as a means of ensuring that corporate assets are freely transferred to their highest valued uses. We also understand that there is a strong social and community concern that the transfer of assets and industries out of state will upset local associations, economies, labor forces, and even charitable contributions. A constitution does not embody any particular philosophy. Because each of the competing philosophies in this case is based upon an inflexible and ultimately false structure, our decision will not embody them either. The decision which we must make is more fundamental than the articulable premises of those philosophies. Accordingly, although we can trace the difference here between an economic philosophy which favors the free play of assets and a political philosophy which favors the free play of interpersonal relations in local communities, we must ultimately perform our judicial role and make a judgment more subtle, fluid, and ineffable than any philosophic structure can accommodate. Our judgment is that the free play of interpersonal relations within local communities is more important than the free play of assets within the nation. We believe that the maintenance of local communities in which people coincide encourages friendship more than does the protection of the national play of assets. Even if our intuition is wrong, our decision will remain as a symbol of our belief that we value communities which encourage friendship more than we do economic arrangements which encourage wealth-maximizing asset-transfers. Apart from the virtue of honesty, this effort to rewrite Dynamics befriends Justice Holmes by preserving the elevating spirit of his Lochner dissent and befriends all judges by channeling the anxiety of influence from Derrida's philosophy of language into an elevation of the art of judging. Derrida is used to deflate the false, articulable premises of competing philosophic arts. But Derrida is also deflated. It is the judge's role in a society of role-playing to make and effectuate judgments. While Derrida can only opine on texts from a distance, the judges' opinions are texts which have a direct impact of what people do. The judge ultimately channels the anxiety of Derrida's influence by reaching honest, if ineffable, judgments which create the kind of fluid structures in which the friendships which spring from play are likely. V. CONCLUSION Although this Article reaches broadly into works of philosophy and literature, its goals are really quite modest. I have tried to construct a standard for evaluating all discourse and particularly the judicial opinion in an epoch which questions the legitimacy of standards of evaluation. The good judicial opinion is one that befriends prior and subsequent judges by elevating the art of writing judicial opinions. Surely it is not too much to ask of our judges that they write their opinions in a manner that elevates their art form. A judge who can step back from a written opinion and say that he or she has written something which is itself an act of friendship to all other judges has written a "good" opinion. Perhaps this Article's most ambitious goal, however, is symbolic. I hope that this Article will encourage others-particularly legal scholars-to accept and to transcend the undeniable insights which Derrida, deconstructionists, and even critical legal scholars have made about our legal system. If it is possible to construct an argument for friendship by using, not rejecting, the insights, then it may be possible to construct in the future a similar argument for truth and beauty. 13. Sharp , Friendship, 2 Kenyon Rev . 1 ( 1980 ) [hereinafter Sharp, Friendship]. Professor Sharp has since written an outstanding book, tracing the decline of friendship in literature . See generally R. Sharp, Friendship and Literature: Spirit and Form ( 1986 ). 14. Sharp , Friendship,supra note 13, at 1. 15. See W.C. Booth, "The Way I Loved George Eliot:" Friendship with Books as a Neglected CriticalMetaphor,2 Kenyon Rev . 4 , 6 ( 1980 ) [hereinafter Booth , GeorgeEliot]. 16. Id . 17. Id . 18. See id. 22. See Hyde , Some Food We CouldNot Eat: Gift Exchange and the Imagination, 1 Kenyon Rev . 32 ( 1979 ) [hereinafter Hyde , Some Food]. 23. Id at 41 (citing Walt Whitman's "A Song of the Rolling Earth" ). 24. See Aristotle , The Nicomachean Ethics 216 -17 (D. Ross trans . rev. ed. 1987 ) [hereinafter Aristotle, The Nicomachean Ethics]; see also J. Cropsey, Political Philosophy and the Issues of Politics 269 ( 1977 ) ("it is the intention of the donor rather than the estimation of the recipient that is decisive"). 25. See R. Brown , The Law of Personal Property §§ 7 . 1 - 7 .9, at 76-105 (W. Raushenbush ed., 3d ed. 1975 ) [hereinafter The Law of Personal Property]; E. Clark , L. Lusky & A.W. Murphy , Gratuitous Transfers: Wills, Intestate Succession, Trusts, Gifts and Future Interests 408 - 11 (2d ed. 1977 ) [hereinafter Gratuitous Transfers] . 26. See Gratuitous Transfers, supra note 25 , at 408-11. 27. See The Law of Personal Property, supra note 25, § 7 .13, at 119-26. 28. See Mechem , The Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by CommercialInstruments,21 IllL. . Rev . 341 , 348 - 49 ( 1926 ) (describing the rationale underlying the delivery requirement of gifts). 29. Id at 348. 30. Id .; see alsoThe Law of Personal Property, supra note 25 , § 7 .12 ( "There must be an absolute and unequivocal intention by the donor" ). 31. See also Gulliver & Tilson, Classificationof GratuitousTransfers,51 Yale LJ. 1 , 5 - 13 ( 1941 ) (finding that compliance with all formalistic requirements of the statute of wills serves a protective, evidentiary and ritualistic function) . 32. Not only does American law implicitly deter gift-giving, it explicitly taxes giftgiving . See I.R.C. § 2501 ( West Supp . 1991 ). The federal gift tax purports to compensate the government for the loss of estate taxes paid on property given before death . See 1 Fed . Est. & Gift Taxes (P-H ) 125 , 001 . But the tax is not imposed upon exchanges of 4 . 59. NAACP, 357 U.S. at 460. 60. See , eg., Roberts , 468 U.S. at 617-18 ( choices to enter into and maintain certain intimate and human relationships must be secured against undue intrusion by the state) . 61. Id . at 618. 62. See Loving v. Virginia , 388 U.S. 1 , 12 ( 1967 ). 63. See Moore v. City of East Cleveland , 431 U.S. 494 , 499 ( 1977 ). 64. Rhode , Association and Assimilation, 81 Nw. U.L. Rev. 106 , 117 ( 1986 ). 65. See eg., R.M. Unger , Law in Modern Society 8-11 ( 1976 ) (questioning the ability of a purely causal analysis to explain social phenomena). 66. Sharp , Friendship,supra note 13, at 2. 67. Bolotin , Plato's Dialogue, supra note 21 , at 9. 76. See Booth , George Eliot, supra note 15 , at 7-9; see also Aristotle, The Nicomachean Ethics, supra note 24 , at 194-99 ( discussing three objects of love and corresponding kinds of friendship). 77. See Aristotle , The Nicomachean Ethics, supra note 24 , at 195. 78. See , e.g., Paperback Best Sellers, N.Y. Times , Feb. 16 , 1992 , § 7, at 32, col. 2 ( advice , how-to, and miscellaneous); Best Sellers, N.Y. Times , Jan. 28 1990 , § 7, at 32, col. 1 ( advice , how-to, and miscellaneous); Booth, George Eliot, supra note 15, at 7 ( "members of gournet cooking clubs-stop being friends as soon as the pleasure-giving stops" ). 79. See Aristotle , The Nicomachean Ethics, supra note 24 , at 196. 80. See Hyde , Some Food, supra note 22 , at 54. 81. See id. at 36-38. 82. See id. at 48-49. 83. See Aristotle , The Nicomachean Ethics, supra note 24 , at 197. 86. C.H. Smith , T.S. Eliot's Dramatic Theory and Practice: From Sweeney Agonistes to The Elder Statesman 6 ( 1977 ). 87. See id. 88. See W.H. Auden , In Memory of W.B. Yeats, in Collected Poems 197 (E. Mendelson ed. 1976 ). 89. See Booth , George Eliot, supra note 15 , at 7-9. 90. Aristotle , The Nicomachean Ethics, supra note 24 , at 193. 91. See J. Cropsey , Political Philosophy and the Issues of Politics 272-73 ( 1977 ). According to Aristotle, friendship "repairs the imperfection in man arising out of the discord of body and soul-but on the level of philosophy, not of nobility; or between two men, not among a multitude; or dialectically , not politically." Id. at 272. 92. See M. Montaigne , Of Friendship,in The Complete Works of Montaigne 135 (D. Frame trans . 1958 ). 93. See id. 94. J. Rousseau , Emile or On Education 214 (A. Bloom trans . 1979 ). 95. See Emerson , Friendship,supra note 75, at 520. 272. R. Posner , Law and Literature: A Misunderstood Relation 285 ( 1988 ) [hereinafter Posner, Law and Literature]. Judge Posner actually concluded ironically that Holmes' dissent in Lochner "is not, in short, a good judicial opinion. It is merely the greatest judicial opinion of the last hundred years." Id. 273. Id . at 281 (citing Currie, The Constitutionin the Supreme Court: Full Faithand the Bill of Rights , 1889 - 1910 , 52 U. Chi . L. Rev. 867 , 900 ( 1985 )). 274. Id . 275. Id . at 285 (citation omitted). 276. Id . 277. See id. 278. Lochner v. New York, 198 U.S. 45 , 75 ( 1905 ) (Holmes , J., dissenting). 279. Id . 280. Id . 281. Id . 287. Lochner , 198 U.S. at 75. 288. Posner , Law and Literature, supra note 272, at 281. 289. In his work, Processes of Constitutional Decisionmaking , Paul Brest asks: "If the Constitution does not exact Herbert Spencer's Social Statics, does it enact John Stuart Mill's On Liberty ( 1859 )? " G. Gunther, Constitutional Law 532 (11th ed. 1985 ) (quoting P. Brest & S. Levinson, Processes of Constitutional Decisionmaking (1st ed. 1975 )). 290. Posner , Law and Literature, supra note 272, at 284. 291. Id . 292. Id . 293. Holmes , The Path of the Law , 10 Harv. L. Rev. 457 , 466 ( 1897 ). 294. Id . 295. Lochner v. New York, 198 U.S. 45 , 75 ( 1905 ) (Holmes , J., dissenting). 301. Lochner v. New York, 198 U.S. 45 , 76 ( 1905 ) (Holmes , J., dissenting). 302. The label for the "debate" comes from the lead article in a Texas Law Review Symposium entitled "Law and Literature." See Levinson, Law as Literature,60 Tex. L. Rev . 373 , 373 ( 1982 ). 331. See , e.g., Fish, Working on the Chain Gang: Interpretationin Law andLiterature , 60 Tex. L. Rev. 551 , 563 - 64 ( 1982 ) (arguing that a reader cannot read text independently of intention; operations are inseparable); Fish, Interpretationand the Pluralist Vision, 60 Tex. L. Rev . 495 , 503 ( 1982 ) (arguing that any text is capable of pluralistic interpretation); S . Fish, Is There A Text In This Class? 327 ( 1980 ) (questioning textual meaning independent of readership). 332. See Posner , Law and Literature, supra note 272, at 240. 333. 481 U.S. 69 ( 1987 ). See also CTS Corp . v. Dynamics, 794 F.2d 250 , 250 ( 7th Cir . 1986 ) (declaring unconstitutional Indiana's Control Share Acquisition Act) . 334. The statute challenged is titled The Control Share Acquisitions Chapter of the Indiana Business Corporations Law, Ind . Code § 23 -1-42-1 ( Supp . 1986 ). 335. See 15 U.S.C. §§ 78m(d)- (e) ( 1988 ). 336. U.S. Const. art. I, § 8 , cl . 3. 337. See CTS Corp . v. Dynamics Corp. of Am., 481 U.S. 69 , 78 - 87 ( 1987 ).

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Michael J. Kaufman. The Value of Friendship in Law and Literature, Fordham Law Review, 2018,