A Fish Out of Water?: How Literary Theory Can Benefit Legal Interpretation




Journal Title

Journal ISSN

Volume Title




The correct theory of legal interpretation courts should apply to the cases and controversies before them has been the subject of long and often heated debate. Such argument has not progressed to any conclusion in over 200 years. This dissertation proposes to apply literary critical theory to the analysis of various legal interpretive approaches in order to: (1) understand why the debate is futile; and (2) propose the method of legal interpretation that presents the best opportunity for the courts to make transparent and comprehensible decisions based on a combination of text, history, technical, and social development, as well as what is best for the public and for the cultural or ethnic group whose rights are at stake. In order to accomplish this task, this work examines sample U.S. Supreme Court cases of social, legal, or political significance over the last six decades. In doing so, this dissertation analyzes the interpretive legal theory the author of the majority opinion claims to apply to the decision in order to determine whether the claimed theory and the opinion coincide. This investigation suggests a frequent disconnect between the theory claimed and the holding of the opinion. Literary theory is then applied in an effort to explain this disconnect. On the basis of this audit, this dissertation proposes the legal interpretive method that appears most consistent, transparent, and ethical, and argues for the routine application of that methodology by the courts. The research reviewed suggests that literary critical theory proves extremely helpful in explaining the apparent disconnect between theory and result in Supreme Court opinions. The work of scholars such as Stanley Fish, Steven Knapp, and Walter Benn Michaels suggests that each of us thinks through a filter of our personal experience, education, religious beliefs, ethnic and cultural group/status, political views, and expectations. Because we interpret events through this filter, it is impossible for any justice or judge to impartially apply a theory that exists independently of their system of beliefs. This conclusion is based largely on the literary reader response theory – developed by scholars like Hans Robert Jauss, Stanley Fish, and others – which posits that each reader finds meaning in a work based not only on the text but also on the basis of his history, experiences, expectations, knowledge, and beliefs. Having examined a wide variety of opinions based on different interpretive approaches, this work advances the legal interpretive method that seems not only to work most consistently in its analysis, but also results in decisions that are most often transparent, ethical, just, and in the current best interests of the public and its various ethnic and social minorities. That approach – which I refer to as “ethicism,” but is also known as “living constitutionalism” – allows the court the flexibility to consider not only the words and historical meaning of a text, but also changes over time in society, its values, and technology that can impact the outcome. Although this methodology is criticized as offering the Supreme Court excess authority and the ability to usurp the powers of the legislative and executive branches, this work argues that such authority is already vested in the Court by the Constitution and precedent. This dissertation concludes that the endless debate over legal interpretive theories is largely futile because justices and judges are largely unable to apply them neutrally and without prejudice. It argues that a better approach is recommended by literary theory: ethicism, as informed by reader response theory. Furthermore, the increasing politicization of the Court has eroded public trust in the institution as fair and impartial. This fact threatens the Court with changes by the legislature or executive in the form, makeup, or selection process of the Court. Ethical decision making could help restore that trust. There could be important potential social consequences were the Court to adopt of a consistent ethicist method of deciding cases. This work argues that oppressed minorities and opposition groups could benefit from a fairer, more objective approach by the Court, as demonstrated by the Black Lives Matter and MeToo movements and critical cases such as the upcoming review of Roe v. Wade. Society is harmed by the inconsistency and obvious prejudices of the Court, and adoption of ethicist methodology could ameliorate that harm.



Law, Literature, American