But is it literary deconstruction or ordinary legal interpretation that is really the culprit for facilitating the elasticiity of meaning that can justify the most horrific of acts (and more mundane ones too)?

Brooks has been “obsessing” about this question of the plurality of meanings in the so-called torture memos for years, he says. The memo cites many dictionary definitions of “torture,” “severe” and “pain and suffering,” as well as other important legal terms, to conclude that many practices do not meet the statutory or treaty level of unlawful torture. He calls the convoluted treatment of ordinary words in a variety of different (including medical, rather than ordinary) usages as a “kind of parody of literary interpretative deconstruction at its worst.” This use of deconstructionist methods “in the wrong hands” has led to “facile untetherings of meaning.”

I am intrigued by this essay because although I agree with the diagnosed pathology, I am not sure I can sign on to the attributed cause. As a new law student I remember arguing with one of my more traditional law professors (this is over 30 years ago, before the “interpretative turn” in legal analysis, though not in literary criticism), that reading a case or statute felt to me like the deconstructionist readings I was asked to do of Ezra Pound and T.S. Eliot in my college English department. I thought my skills at literary analysis would serve me well in this “war of words” and interpretation that seemed to be what legal analysis called for. Oh No, my then law professor said. Law is real, poetry is fiction –the rules of interpretation and the consequences of wrong readings are quite different (see Robert Cover, among others for similar points). Yet despite what my professor then said, I never stopped thinking that legal reading and ‘riting and reasoning was as much of a game, with skill of course, of interpretation as rigorous literary analysis. I generally prefer to read poetry and novels than law, but alas, I became a lawyer (and only later someone who could teach literary criticism in both law and interdisciplinary undergraduate classes), who had to use interpretation to make words mean what I wanted them to in advocacy (in my case, mostly in civil rights and poverty law cases). So, we of the period of large scale law reform argued for “our” interpretations of Constitutional provisions, statutes, regulations and the “underlying meanings” of legislative intent or judicial interpretation. And so, sadly, what was good for the goose is now used by the gander??? (Sorry, that metaphor really doesn’t work).

With our literary “penumbras and emanations” and with the elaborate and wordy standards of equal protection jurisprudence, “fundamental interests” “suspect classes” (where are these phrases written in the Constitution?), the progressive good guys have used felicitious phrases and ambiguous words for decades, if not centuries. I do not mean here to equate the tortured (yes!) use of language by the Bybee Memo authors with the creative arguments and use of words by the heroes of the good ole days (Constitutional and civil rights “victories” for social justice in the 1960′s and 1970′s), but I do think that whatever is wrong with multiple levels of meaning in legal memos comes from our own discipline –law and legal interpretation — more than we can blame it on po-mo deconstructionists.

Legal reasoning in a common law system has always been about interpretation and we have always both demanded clarity of interpretation (in rules of statutory construction, for example) and also “fudged” it by using words to create the most creative of arguments to create new understandings of legal rights, duties and entitlements. Remember Charles Reich’s conception of welfare as a property right, The New Property, 73 Yale L. J. 733 (1964) and Joseph Sax’ public trust for environmental duties,The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970) (and his conception of slumlordism as a tort)? These creative uses of language are a part of our stock in trade (both practical lawyering and scholarly writing). My colleague David Cole has also argued that a little “misinterpretation” went a long way in First Amendment jurisprudence (see Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L.J. 857 (1986).

So, I don’t think we can blame literary or humanist deconstruction for the bad readings or interpretations or worse, bad writings, of lawyers. Interpretation and use of words is just as much ours (lawyers) as theirs (English professors and novelists) (and thanks to James Boyd White, Richard Posner, and others we have been taking both the correspondences and differences in our disciplines seriously for decades now).

Where I do agree with Peter Brooks is that how we read, write, and interpret does matter. There is an ethics of meaning –what we say something means in law affects people’s lives. And while I am an enthusiastic member of the law and literature group that believes that good reading can lead to empathic responses to our fellow human beings (thanks to Martha Nussbaum, Robin West, Toni Massaro, Susan Bandes, and others), I also believe about law, as I did about poetry so many years ago,,,, that there are “better readings” than others. Some interpretations are wrong and some are reasonable, while others are just better, or worse. In legal matters where words pack a punch (quite literarily) this is even more true than in literary readings. So, I join in the need for an “ethics of reading,” but in law we also need an “ethics of writing.” When we write laws and say what they mean, we are doing something different (and potentially more harmful) than what fiction writers, poets, and literary critics do.

And when we do so (write laws, with meanings and interpretations, that is), it is “our” fault, our field and our “ethics” that are on the line –not those of our college teachers or inspirational authors.

A few years back I was asked to moderate a panel at Georgetown in which Viet Dinh (R) and John Podesta (D) and I addressed concerns about political correctness and diversity of view in our student body. This was before a choice-right to life dispute here last year, but during a period of our generally wonderful community-enhancing culture here. We had a lively, civilized discussion, which actually led to some concrete suggestions (and whether coincidentally or not ,we have subsequently hired several more conservative members of our faculty, both entry level and lateral). All of this was our institution at its best. So, now I feel like one of those students who complained about feeling silenced in the classroom (pro-life in a sea of pro-choice, or market based efficiency in a sea of state regulated fairness).

Many of my colleagues, rightly, feel that Obama will signal a new day for the United States — as they say, “the prince of hope, inspiration and change,” as JFK seemed in 1960. (I was actually an RFK fan swimming against the Eugene McCarthy tide in 1968). My pollster husband tells me some of this is generational –so far Obama is outpolling Clinton in youth votes and she is still outpolling him in “older” voters. Oh dear, how did this “child of the sixties” (me) become an older person? Many think both Clintons are tainted by the failures of that administration to do more on the issues I mentioned above and I agree with those who think that Bill Clinton’s campaigning has been a bit “OTT” (over-the-top) lately, employing old and unnecessary “hit” tactics that will not serve us well post-primary season, BUT the Clintons (and HIllary in particular) were thwarted in their efforts by the health insurance industry, the Gingrich “revolution” and a Republican Congress (if not a “right wing conspiracy,”) and we should think about more complex lines of causality, as any President will have to.

When I listen to some of the most persuasive arguments on behalf of Obama –that he will signal something new (and don’t tell me his multi-cultural identity is not one of those things, which I applaud and support) like greater credibility abroad and more of a community organizing background, I am unable to be heard on some of the arguments or views that I have about Hillary without being glared at or feeling like I am supposed to turn in my membership card for SALT or other bastions of “secular humanism or liberalism” that I am a member of. Hillary and Obama are both lawyers, trained at elite schools and using their considerable intellects and personal qualities to do a wide variety of things. They are much closer in fact than all the rhetoric would suggest. They both have represented some unsavory clients (Wal-Mart and slumlords) and they both have done extraordinary work on the amelioration of poverty and related issues (children, legal services, education and health care for Hilllary; community empowerment, poverty reduction, education, and social equity for Obama). When I am told that Obama will make a great signal to the rest of the world that we are the inclusive nation we say we are I need to remind people that on the basis of much of my international work in the last few years, Hillary (and yes, her husband Bill) are much beloved abroad. And what would a first woman president signal to the rest of the world and our own children? Both candidates have much to say for these issues –both substantive and symbolic and both, in my view, are important in elections and leadership.

Perhaps I am getting older or it is my years in Washington DC, but I do also value someone who has worked “in” this system, despite all its muckiness, and who manages to bring in people who often claim not to like her. I did not start out a great fan myself (for a variety of other reasons) but as I consider my own continuing deliberations (as one who teaches and practices deliberative democracy), I want more discussions of both the merits and who could be an effective and “electable” leader. I don’t like being made to feel guilty that I might vote differently than some of my colleagues.

Whatever happens in the elections, I know, as a teacher who has always tried to create an atmosphere of genuine respect for different views in the classroom , I have learned a great deal about the experience or ethnography of political correctness, now from inside that experience. As one talky, noisey girl, I feel like I can’t express certain views that are not expected of my demographic (progressive, ciivl rights, justice seeking, anti-war, political activist).

Both as a teacher and as a mediator, being inside the experience of a “minority view” in my own institutional political culture is instructive. Perhaps I need to go back and read (along with my colleagues) the posters on my office door about how to have conversations across difference. I”ve been a disenfranchised or minority person before — but feeling like I can’t say what I think –that is a somewhat new experience. For those of us who will want to work together in a new government and administration, I think we need to heed some of the process advice of Emma Goldman –to paraphrase somewhat, the process of the revolution needs to reflect the values that will follow when the revolution is successful. A little really good open and deliberative conversation could go a long way to making that new political order. Let’s have some respect for our not-so-really-different views, as well as for those with whom we really do differ. For you teachers out there, think about how you structure conversations in your classes to elicit good and open thinking and think about whether and how you express your own political views.

It might be interesting for legal scholars to write and think about their own creative processes. Over the years, friends and colleagues have reported quite different ways of “creating” legal scholarship. One colleague reported she wrote out her argument first and then had student research assistants find the footnote support for her. Another said she wrote to create a coherent “story” of how the law should be and then dealt with the “actual” law later in the footnotes. I have always felt that my entire writing style was shaped by law review writing. I can’t say anything without dropping a footnote (fortunately, I can’t do that so easily here), looking for authority for what I say and then taking a very interesting digression into all the books and articles I have accumulated to document what I already think or have learned from others. One can avoid writing for days, weeks, even months that way!

With the development of seminars, fellowships, and materials (see e.g. Eugene Volokh and Alex Kozinski, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers and Getting On Law Review, 3rd. ed., 2007) which attempt to teach law students and young scholars how to conceive of and complete a work of legal scholarship, what might we learn about thinking, writing and creating from creative writing?

Think about:

1. How do we begin? (Research/thesis first? or “free writing” from a thought, inspiration, class comment, argument with a colleague, disagreement with a decision or legal policy?)

2. How actively or passively do we write? (A feminist friend of mine once wrote a whole article about the history of feminist thought without naming a single person who created or litigated feminist legal theory.) Are there legal actors in our stories or are we “objective” and neutral observers about how the law develops.

3. Where do our ideas come from? (How original, how do we check for intellectual, as well as case or law “pre-emption” or creativity? How interdisciplinarily do we think?

4. How do we write? (In disciplined, so many words, hours at a time, or as the “flow” directs us– between classes, babies crying, student meetings, faculty seminars)

5. Where do we write? (in the library, at home, on laptops in the skies, now in exotic leave of absence locales, far away from an American law book, inspired or not by comparative legal systems and actors?)

6. What words/language style do we use? Clear, accessible, or full of jargon and speciality vocabulary?

7. Whom do we show our writing to? (Critics at the office, at home, distantly admired mentors and leaders in their fields, non-lawyers, children, significant others, judges for whom we have clerked?)

8. How often do we revise?

9. What does it feel like when someone writes a better version or has the same thought or the law changes or the world changes and all your work seems for naught?

10. To what audience do we write? (The Supreme Court, other academics, our spouses, our mothers, our mentors, our students, practicing lawyers, prize committees, tenure committees)

11.How do we know we have said something worth saying? (Being disagreed with, hits on SSRN, citation listings.I once complained about how I was being criticised as a “vulgar Gilliganite” (“difference feminism”), when an academic colleague pointed out, “at least you are being read and talked about, if misinterpreted…now you can respond.”. Now, I get invited to teach and lecture all over the world because someone has read my texts on ADR and I feel more “listened to” abroad than at home).

12. How much do we read, think about and consider what has gone before us? (As an increasingly older scholar I sometimes marvel at how little junior scholars read and cite those who had the same idea decades ago–I now realise I was guilty of this myself as a younger scholar…Either there is “nothing new under the sun” or each moment we “make ourselves anew.”) How appreciative we should be to those whose shoulders we stand on. (see Robert Merton, The Shoulders of Giants).

13. How do we know when we have been moved/stimulated by really good writing? (Joe Singer, thank you for The Nihilist and the Cards, Yale L. J. so many years ago, and Marc Galantaer, Why The Haves Come Out Ahead and Bob Mnookin and Lou Kornhauser, Bargaining in the Shadow of the Law–my personal favorites. What are yours?

14. How did we learn to think and write as legal scholars (who are the silent mentors or the voices in our heads who inspire us to keep thinking and writing, and why?)

15. Given how little we are listened to these days by courts and policy makers (and each other–see the mounting piles of reprints in my office), why do we keep on going? What moves us?

Well, just some thoughts to keep our creative juices flowing on a day (Martin Luther King, Jr. Day) when we can stop awhile and reflect on what we do, why we do it and whether we can “be the change we want to make in the world” (M.K. Gandhi).