The Value of Friendship in Law and Literature
The V alue of Friendship in Law and Literature
Michael J. Kaufman 0
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Recommended Citation Michael J. Kaufman, Th e Value of Friendship in Law and Literature, 60 Fordham L. Rev. 645 (1992). Available at: http://ir.lawnet.fordham.edu/flr/vol60/iss4/3
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
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
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
"A friend can reduce me to misery with a single look."
- Duncan Kennedy"
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
* Aristotle, The Nicomachean Ethics 192 (D. Ross trans. rev. ed. 1987).
** Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 209,
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
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
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
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
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.
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.
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
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
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.
The law of property has flirted with, but never embraced, friendship.
21. D. Bolotin, Plato's Dialogue on Friendship 9 (1979) [hereinafter Bolotin, Plato's
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
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
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.
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
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,
(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
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
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.
A STRATEGY FOR THE RENEWED PRESENCE OF FRIENDSHIP
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
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
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
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
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
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
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
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.
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.
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
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
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
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
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
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
297. Id. at 76.
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.
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,
ever, is itself a masterful channeling of the anxiety of influence from
alternative truth-seeking techne into an elevation of the philosophy of
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 "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.
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.
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.
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
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.
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
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
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
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
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.
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
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.
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
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
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.,
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
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,
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.
"[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
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
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.
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 ).