Academic legal blogger Jeff Cooper takes on academic legal blogger Glenn Reynolds in this lengthy post about legal interpretation.

As someone who’s done a lot of work with interpretation theory myself, I’m interested in the world of meta-interpretive theorizing — or (put another way) I’m interested in examining the way people’s ideas about how interpretation works translates into real world expressions of those ideas — in the form of public policy, for example. And so I find the legal field to be a particularly fertile one to explore.

In his original post, Glenn writes:

Just heard one of my collegues talk […] about how the Supreme Court has eviscerated the Constitutional provision allowing defendants to confront witnesses against them. It’s a classic slippery slope, in which initially narrow exceptions have consumed the rule. Being a curmudgeonly textualist, I think ‘confront’ means confront, and isn’t satisfied by things like ‘other indicia of reliability’ or video monitors.

Interestingly, Justices Scalia and Thomas take more or less the same position, which had some of my traditional-lefty colleagues scratching their heads a bit. But in criminal matters, it’s not at all clear that strict construction is worse for defendants than creative judging.

To which Mr. Cooper responds:

Prof. Reynolds sets up a false dichotomy between principled, conservative textualism that narrowly constrains government authority on the one hand and an ‘unrestrained‘ liberal judiciary engaged in unprincipled ‘creative judging‘ on the other.

The dichotomy is false for three reasons. First, conservatives, even those who advocate strict constructionist principles, are hardly uniform in applying that approach. As evidence, one need look no further than the Court’s recent series of profoundly atextual Eleventh Amendment decisions. Second, textualism, while appealing theoretically, is unable to produce consistent, determinate interpretations in practice. I’ve written about this previously (anyone with time, access to a law library or Lexis/Westlaw, and absolutely nothing else to do could take a look at my article, “Interpreting the Americans With Disabilities Act: The Trials of Textualism and the Practical Limits of Practical Reason,” at vol. 74, p. 1207 of the Tulane Law Review), and others have undertaken more systematic studies that have arrived at the same conclusion. One doesn’t have to fully adopt a pomo “all text is indeterminate” position to recognize that many texts allow for a variety of interpretations, even when constrained by textualist methodology.

Finally, the counterpoint to Scalia/Thomas strict constructionism isn’t unconstrained creative judging, as Prof. Reynolds seems to suggest. It may be differently constrained judging, and sometimes perhaps less constrained judging, but few people (and few serious legal academics) really believe in unbounded judicial discretion.

Some of the difference between Prof. Reynolds and myself may be the result of our different specialties. He writes about constitutional issues, while I focus more on statutory interpretation; the interpretive issues raised by statutes and the Constitution are somewhat different. Nevertheless, Prof. Reynolds has created a straw man, and for that he deserves to be challenged.

Of particular interest to me (as an unreconstructed intentionalist) is this line from Cooper’s post: “One doesn’t have to fully adopt a pomo ‘all text is indeterminate’ position to recognize that many texts allow for a variety of interpretations, even when constrained by textualist methodology.” I’ve written him asking for clarification, but if I’m reading this correctly, what Mr. Cooper is arguing here is that one need not believe that a text can mean anything to posit sensibly that a text can mean several things — as determined by context (and influenced by the growing body of precedent).

I find this potentially troubling in the context of interpretation (as I find the strict textualism Glenn espouses potentially troubling), but I’ll wait until I receive clarification before I get into this any further.

But it’s coming, I promise.

[update: Jeff Cooper wrote me to let me know his response is forthcoming; Glenn is out boating or some shit.

update the second: Bill Quick comments on a controversial ruling by U.S. District judge William Young in the case of would-be shoe bomber, Richard Reid. It seems Judge Young couldn’t bring himself (legally — and I’m assuming his ruling is a “textualist” one) to call an airplane a “vehicle” (given the definition of vehicle he had to work with); Bill agrees with the judge*; I disagree (provisionally. I need to find out the date of the code he referred to in making his decision). Here’s Timothy Noah’s take, from Slate.

*Bill notes in his comments that he’s after bigger fish, specifically the

[…] vast amounts of code and statute that no longer bears any relationship to reality, yet remains on the books as technical ‘law.’ […] A lot of it is used by authorities in a coercive manner — arrests for laws that were out of date 150 years ago, that sort of thing. The whole body of the code needs overhauling — and it is at least partly due to judicial lenience in ‘stretching’ interpretation in order to twist law into relevance that allows this long overdue overhaul to be put off.

— Which is a sentiment I can certainly get behind.]