Literature's effect on my future study of the law

It looks like after nine months of looking for a job, applying to three different schools for three very different ideas, getting six job offers I decided I didn't want, and generally feeling for most of 2025 like I don't have any great path forward with my life, I'm going to spend 2026 in law school. I got offered a full ride to the only law school that's within driving distance. I don't feel complete certainty this is the right decision. It's not the material; I've started reading through three of the law books we'll be using in my first semester, and I find law interesting enough I don't think I'll hate what I'm doing, at least while I'm in school. It's more a question of uncertainty whether law four years from now will be a relatively secure path to a good career. There are concerns about AI taking jobs, or whether anyone will hire someone who by then will be in their late 50s and just coming out of law school. But the job search these last nine months has been discouraging enough that this seems like a risk that's just barely worth taking. I'm going to need to work until seventy or near it, I think, and that means it's probably better doing what it takes to find something I'd enjoy and something that will pay decently rather than just settling into whatever I can find and trying to ride it out until I can fully retire. 

As I've been looking through these law books, it's pretty clear that my past study of literature is going to have a strong influence on how I think about the law. Probably the most important issue from literary criticism and literary theory that's going to color how I see the law is the notion of intent.

Three types of intent

This is something I've talked about so many times on this blog, anyone who reads it regularly is probably sick of hearing me talk about it by now. I spent a lot of time on it in my post about how to think of homoerotic subtext in the Frodo-Sam relationship, which was one of the posts I've written that got the most hits. Perhaps clairvoyantly sensing my own future entrance into law school, I looked at types of intent in a post on what I saw as the weaknesses of originalist readings of the Constitution. I'm sure I've covered intent in criticism elsewhere, because it's something I think about almost every time I start to pull apart a work of literature.

If you haven't read those posts before or if you've never thought much about what it means to consider what a literary work means, here's my much shorter version. Most people assume that to consider what a piece of literature--a poem, a short story, a novel, an essay, etc.--means is to figure out what the author meant when they wrote it. This seems like it's a common-sense approach, and in fact most people tend to act like almost the only way to get an iron-clad answer about what a poem means is to find an interview with the author where the author answers that very question. Failing that, as we do in almost every real-world case even when the author is still alive and much more when the author is long dead, we read about the history big and local during the time of the author's life. We research the author's autobiographical information. We read the letters they wrote, read the speeches they made, study the various manuscript versions available of the works we want to know better. Piecing all this together and adding a little bit of psychological inference ("He wrote this to cope with the loss of his third child") is how we best determine the meaning of a given work. 

As reasonable as this sounds, there are problems with this seemingly common-sense approach. One is that a poem or novel is an intentionally imaginative work. In a work with great imagination, an author often isn't trying to convey intent in the same way they are when they leave a note on the door saying they're going out for milk. Meaning is much more open-ended, and authors themselves aren't necessarily thinking of what something "means" when they write a fantasy novel about a three-headed dragon or a lyrical poem about watching a boy try to tie his shoes. 

Secondly, the more complicated the work one writes, the less one is able to control the meaning. If I tell my wife I work late tomorrow, the meaning is pretty clear, but if I try to explain to her my feelings for her, I might say all kinds of things that could be construed in many ways. For example, if I tell her, "I like the way you look when you get all dressed up and put on makeup," I might be saying I think that her choices in how to adorn herself for very formal events are especially praiseworthy, but what she might hear is, "I wish you'd quit dressing like a slob all the time and not wearing makeup." 

And here, I might object, saying she has mistaken what I meant, and maybe I have a point, because I know in my own mind what I was thinking. But is she totally wrong? What if she's lately mentioned a few times that she feels like she's letting herself go, and she thinks I no longer find her attractive? Given this context, mightn't she be justified in thinking, based on what I said, that I meant something else? Mightn't my text have a life of its own, one that is at cross purposes with what I thought my intent was?

I want her to use the intent of the author (me), but she is using the intent of the text. That is, she's judging based on what I actually said. And maybe she's got a point. Maybe I meant to give her a compliment, but, given the context of everything, I might have said something that had a meaning I didn't intend. I can't complain that she's willfully misconstruing me, because I have an obligation not just to say what I think is right and assume everyone will do the work to get inside my head and fix the imperfections of my speech, but to craft speech that actually says what I mean it to. 

Maybe my wife and I will be able to go to therapy and work through communication enough that I will make slightly better utterances and she will be a little more able to understand what I had in mind when I said them, but with literature, the utterances are so complicated, and the mind of the author so remote, we will never be able to to achieve the same level of understanding. A 1000-page novel set in a fictional medieval Europe has, by its very nature, a much more complicated system of meaning than my short, mostly declarative sentence about my feelings. 

Some readers will attempt to deal with this by denying that a story means anything. It's just there because it's fun or interesting, and to try to make it mean something more is a trick played be people who want to sound smart or start controversies. But this over simplifies the human mind, which always tries to make meaning out of stories. Particularly with a well-crafted story or poem or song, where everything was put there for a reason, it's logical to assume that there are at least some conclusions we can make about those decisions. If everyone dies at the end of the story, what does that say about the universe of the story? If all the women in the story are fatuous publicity whores, what kind of message does that convey about women, or at least about the kind of woman who is in the story? Those kinds of questions aren't gratuitous; they're baked into our DNA as human readers. No human would read those kinds of narratives and not attempt to create a theory that makes sense of them.

I think the real problem people have with reading from what the text says instead of what the author thinks she meant is that you can end up with a reading that the author herself would deny. Doesn't the author have a more authoritative say than the reader about meaning? While it's valid to give authorial interpretations a privileged position on the basis of being interesting, I think the reason we shouldn't deny readings that the author disagrees with is twofold. First, authorship and criticism are two different skills. It's quite possible the writer, although he has great imaginative sight and powers of summoning worlds with words, isn't actually very good at reverse engineering and figuring out what an already created work means. Many authors are lousy critics. (Which is why I wonder so much why Best American Short Stories keeps having authors pick the best stories instead of critics. Also nearly all contests have authors as the judges.) The second reason is that literary creations are works just like chairs and power tools and steak sandwiches. If the creator says, "This is a comfortable chair because I made it with velvet so it would be comfortable," but the critic says, "This is not a comfortable chair because it has a giant lump in the middle," the critic is well within his interpretive rights to do so. The critic is using the text of the chair, whereas the creator is using his intentions. Isn't the critic's reading from the text the more valid one?

The third type of intent happens when readers interact with a work and it takes on a life of its own. Say that a creator makes a crockpot, and nobody thinks it's a very good crockpot, because it burns its users. But the users eventually find it actually makes a very good space heater for the same reasons that made it a bad crockpot--it puts off heat around it. The creator might be upset, but the users are happy. This might be the case when a work of art develops a following of rabid fans who create their own subculture based on the art. Perhaps most people who have interacted with the work more casually think this subculture is silly. Maybe even the author thinks it's silly, but the fans are happy. This type of intent is the intent of the reader. The reader is entitled to this type of intent. After all, they're the ones the work was meant for.

Applying types of intent to the law

When considering the law, as in any other kind of interpretive venture, we have to consider which type of intent makes the most sense. One very influential school of legal interpretation is the originalist school. Five of the nine Supreme Court justices are at least partly adherents of this philosophy. Originalism is located somewhere between intent of the author and intent of the text. As Justice Barret explained a few months ago on an episode of the podcast We the People, originalism tries to avoid some of the weaknesses of authorial intent thinking. It isn't trying to use psychoanalysis to dig up the unobtainable mental states of Madison, et.al. in 1787. Rather, it aims, whenever the text isn't extremely clear (meaning it isn't saying something unambiguous like "the President has to be at least thirty-five years old") to find the "original public meaning." That is, with a textual passage that could be read multiple ways, such as "No person shall be...deprived of life, liberty, or property, without due process of law," one way to help fix the meaning is to look at how it was understood as a practical matter at the time it was adopted. 

This was, quite controversially, the logic that supported the decision in the Dobbs decision that overturned Roe v. Wade. Originally, when the Supreme Court ruled in Roe that a woman's right to an abortion in the early stages of pregnancy was protected, they reasoned that decisions over reproduction and family planning were core rights that would be included in "life" and "liberty" under the Fourteenth Amendment. In Dobbs, the Supreme Court decided instead to look at the long tradition of the United States to see if society considered the right to an abortion to be a core liberty covered in the Fourteenth Amendment at the time it was passed. Not surprisingly, it was not, because it was passed in the mid-nineteenth century, when women couldn't vote and those who could had very different notions about the rights of women than we do now. 

The strength of originalism and original public meaning (OPM) is that at least we know what we're using as the basis for argument. We might disagree about what a law means, but it can't just mean anything. We know what kinds of evidence we are considering: the text of the law itself and the historical records of how people understood and put the law into practice. The closer those records are to the time of the passing, the more authority they hold. 

I don't mean to outright condemn originalism, or to suggest that those who hold to it are intellectual weaklings. It's a coherent theory. Reasonable people (to use the Holmes test) could stick to it throughout a lifetime without getting themselves into any greater a self-contradiction than proponents of almost any other theory would. If one of the goals of law is to provide predictability, it has more hope of that than many other legal theories. Still, the weaknesses of OPM are many. First, when there was always a diversity of opinion about how to read the law, whose original public meaning do we decide from? Do we pick the one that's the most ubiquitous in the available records? The one the Supreme Court first went with, no matter how convoluted the reasoning? (If so, this would leave us with some very unfortunate readings of the Fourteenth Amendment from the Chase Court.) Do we ignore essays, editorials and law review articles from the time of passing and only focus on statutes? If so, wouldn't the statues lead us in a circular direction? Consider abortion and the Fourteenth Amendment. If we only look at statues at the time it was passed, it's not surprising that a right to an abortion wasn't considered a core liberty at the time of its passing. Women suffered from all kinds of legal and social prejudices, and those were reflected in the statutes. But maybe the point of the Fourteenth Amendment was to reverse some of the statutory prejudices at the time. If so, an OPM reading would defeat an amendment meant to change the status quo, because it would only look to the status quo itself to determine what the norm was. It would require strict scrutiny for any non-enumerated rights, even if the intent in passing an open-ended amendment was to leave the door open to many unenumerated rights. It would require specific language in the Constitution, when it has, since its first draft, been a document with a predilection for strategic ambiguity. 

When considering Constitutional questions, diversity of opinions among both authors and original recipients is more the rule than the exception. Delegates to the Constitutional Convention (which was originally supposed to just edit the Articles of Confederation, not write a new constitution) disagreed every day among each other about what they should write. Opinions changed throughout the months of the convention. Opinions of framers continued to change after passage of the Constitution. Most importantly, immediately after passage, it became clear that there was a difference of opinion within the original public as to the meaning. It took less than ten years for parties to form because of a difference in Constitutional theory. These differences of opinion were strong and never went away. The Civil War was a very bloody and expensive disagreement about differing Constitutional theories.

All of this is to say that the original generation that wrote and passed the Constitution did not agree on what they had agreed to, and no successive generation has been able to agree, either. Many of the first Supreme Court justices were framers of the Constitution (Jay, Rutledge, Wilson, Iredell, etc.). Because the Supreme Court originally gave its opinions seriatim, or one opinion for each justice, we can see that even in the very few cases the court originally took on, the founders didn't agree about what the Constitution meant. 

Even if everyone in this photo were a brainwashed member of a death cult, there is no way you get that many smart guys into a room and have them all agree about anything.

When there is disagreement among even the original public that liquidated (to use the Madisonian term) the meaning, a contemporary court determined to use original public meaning is likely to use its own prejudices to determine which opinions among the original public mattered. In Dobbs, the court shrugged off evidence of widespread practical indifference to abortion laws, particularly prior to "quickening." It privileged statutes over historical research into folk customs. This is neither intent of the text nor of the author. It's intent of the reader, in this case the reader being the six justices who signed off on the decision. 

Maybe intent of the reader is impossible to avoid in any interpretive effort. We'd like to think that in the law especially, intent of the text should be the main focus, because whatever was said before or after passing the law about why we passed it, the text itself ought to be the main focus, because it's what we can say the people have actually agreed to. With intentionally ambiguous phrases in law such as "liberty" and "due process," we are forced into the same kind of position we are with respect to imaginative literature. If it's not a straightforward law, we can have a room full of people insisting they are the only ones looking closely at the text but all disagreeing on what it means. We might all agree that it doesn't mean just anything, and we might even mostly get to some general agreement about the ballpark it's in, but there is room enough to accommodate the entire political spectrum from right to left within the text, and the text is really all anyone can hold us to. 

Making this whole situation worse for those who would like clarity, our common law tradition has attempted to deal with ambiguity in the law through precedent, meaning the law isn't just the law, but the tradition of interpreting the law through past decisions. Those decisions themselves include ambiguities which then must be interpreted and liquidated. The law doesn't become clearer through the years; the body attempting to understand it merely grows, and rather than coming to a better understanding of what anything means, we simply deal during different political periods with whatever constraints on the law different groups can achieve. 

OPM not only occupies a middle ground between intent of the author and intent of the text. In fact, it also is adopting quite a bit from intent of the reader, because by looking at how people understood the law, it is dipping its toes into something that in literature is called reception theory, which is very much within the tradition of the intent of the reader philosophy. 

If we are going to use intent of the reader to interpret the law, why not go whole hog about it? Since we today are the people bound by the law and the ones who have to deal with its consequences, and not the people who originally passed it, why not submit it to the public today how we ought to read the law? Why limit the intent of the reader to five people in robes, however learned in the law they might be? Why rule out readings of the law that look to high-level intent, rather than the specifics of how that intent was incorporated at the time of its writing? Why couldn't a contemporary justice say, as Jesus once did, that the laws are made for man, not man for the laws? 

In saying that in evaluating a term like "liberty" by what we mean now rather than what it meant to given readers in the past, I am not saying we ignore denotative meanings. If "gay" meant "happy," we shouldn't try to read it like it meant what it means now. But terms that have always had expansive or protean meanings, like liberty, should be allowed to drift with time. It matters more what people think liberty means now that it matters what people thought it meant just after the Civil War.

Navigating out of nihilism

Like a lot of people, I assume, for the past ten years I've been kind of stuck in a state of deep anxiety when thinking about political life and discourse. It feels like somehow, we've gone from the very healthy and enlightened notion that reasonable people can disagree about many things to the notion that because reasonable people disagree so much, nothing is true. If something were true, we'd all agree, right? So since we can't agree, that must mean the truth doesn't exist, and therefore whatever you can convince people is true is as good as the truth. What makes this kind of cynical nihilism so frustrating is that it uses many of the same devices and tools as an earnest searcher for truth does. Its rhetoric is similar. On the surface, it feels like political sophists using cheap rhetorical tricks to win over the masses are playing the same game the earnest are, so how could we get mad at them?

I don't think the problem is originalism. Originalism is just a method for trying to make sense of legal texts. Its not a monolithic movement. Outside of the Supreme Court, originalists who fundamentally agree on method still disagree about where the methods take them. For example, some originalists agree with unitary executive theory and some don't. The way out of cynical nihilism isn't to pick a better theory of interpretation, because any theory can be used to argue for bad interpretations. And I don't necessarily think that originalists are inherently more cynical than anyone else is.

When I've moved between different kinds of intents as a literary critic, I've generally done it based on which way of looking at a text yields the most interesting reading. Perhaps with literature, there's less of an imperative to find the "right" interpretation, because "right" has a different meaning in literature than it does in law. If Frodo and Sam really do exhibit homoerotic subtexts, nobody is going to go to jail or lose their business. Nor will those things happen if Frodo and Sam don't exhibit anything homoerotic in their relationship. Literary reading perhaps matters most because it allows us to use enjoyable narratives to practice reading ambiguous texts for meaning so that we are better at it later when it has more immediate consequences. 

But that's not to say that literary reading doesn't have any stakes of its own. When we read a story or poem that stirs our imagination through its own imaginative efforts, it forces us to ask fundamental questions of meaning not just in literature, but in the cosmos. If this story moves me, why does it do that? If this ending makes me sad, why? If I think the picture this story paints of reality is true or false, why do I think that? If this poem has given voice to something I've always thought but never been able to put in words, what are those words? 

Using literature to better understand the big questions is a humanistic pursuit, because these questions are inherently human questions. Consistent with the literary pedagogy of my time, I've mostly followed a text-based approach, for two reasons. One is that it's the simplest and yet the most flexible. If there is a dragon in the text, we know we have to deal with a dragon and not the history of agriculture. But dragons mean so many things metaphorically and metonymically that the readings one can draw from the presence of a dragon are limitless. If the dragon is in the text, and there aren't any limitations set on what the dragon might connote, then we are free to see our own extended meanings. The second reason is that whatever intent the author had, she tried to accomplish it with a product, and that product is the text. The text is meant to be seen as the final result of the intent without reference to other things. 

However, if reading literature is an inherently humanistic quest, then it's important not to lose the human element by burying it in text. I used to think "intent of the author" readings were simplistic and naïve; now, decades after leaving those kinds of readings behind, I find myself drawn to them again. Maybe we can't enter into the actual mental state of the author at the time of final revision, but we can, through close attention to the text, try to recreate what Wayne Booth called "the implied author." This is the author we have to imagine to ourselves as having written the text we are reading. 

We do this kind of reading all the time when we see graffiti. It's a very simple message, usually, but that doesn't keep us from drawing big conclusions from what we see. There was a urinal at my job once that had a placard over it that bragged about how much water the agency was saving by having a flushless urinal. On that placard, someone scribbled the word "stinks!" From that one word, I could imagine an independent thinker, someone who doesn't just accept that because someone is telling him that a given step is a good one that it is one. I imagine a likely political conservative, someone who is skeptical of efforts to improve the environment and thinks they often do more harm than good. 

Maybe I've read too much into that one word, but I can't help trying to do it. I suspect it's a common condition. We try to reason our way out to the characteristics of the person writing a text, at least enough to imagine what might have been going through their heads when they wrote something. That doesn't mean that if I read about a kind character I think the author was kind, but it means I can assume some things about how the author understood kindness.

In the law, I think I am likely to adopt something of an "implied author" approach to law, one that tries to unite the three intentions. We read from our intent as readers to live in a just and happy world back to the minds of the writers of our laws. How do we accomplish this? Through the medium of the text. The text is what links author to reader.

The effort in reading the law, then, is like the effort in reading literature. It's not a question of simply trying to figure out what a text means (intent of text), or what someone meant by a particular text (intent of author). It's realizing that the brightest minds of past generations have dealt with problems similar to the ones we face and trying to understand how they answered them through the medium of the text. 

I realize that in law school, and even more after law school when I'm grinding through immigration forms or depositions or whatever else it is I'm actually doing, nobody is going to be asking me anything as lofty as what my judicial philosophy is. Nonetheless, I can't help trying, when pouring over textbooks full of the records of past generations trying to figure out fundamental issues in society, to solve the same problems along with them and figure out what I think of those solutions. 

The future of this blog as a home for literary criticism

I intend to try to still do literary criticism on here. I don't know if that's realistic. Law school is demanding for younger, smarter people than me. For me to try it at my age is possibly foolhardy. Even if I greatly reduce my goals so that I only do Best American Short Stories in a year, that might be too much. I only have so much energy to read and think and write, and any mental resources I use for the blog will be unavailable for law school. Still, I intend to try. These years of literary thinking have left a mark on me that's been obvious from the moment I started reading my first law textbook. 

Even though literature seems to not want me, in the sense that I continually get my work rejected, I still think the discipline of reading critically is one that's worth the effort. I plan to keep trying to make the effort.