Webb on The Lost History of Judicial Restraint @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.

Bahnson and Shreve on Legal Treatises and the Evolution of Civil Rights Case Law @DukeLawLibrary @DukeLaw

Jane Bahnson and Wickliffe Shreve, both of Duke University School of Law, have published Legal Treatises and the Evolution of Civil Rights Case Law as Duke Law School Public Law & Legal Theory Series No. 2023-68. Here is the abstract.

During the 2022 term, the Supreme Court cited treatises to change legal precedent in two important civil rights cases. We examined the Supreme Court’s use of treatises in previous terms to reverse course on civil rights. Of 315 opinions identified, approximately half included treatise citations, more often by conservative-leaning Justices. This paper discusses the use of treatises by the Supreme Court to support its decisions in civil rights cases.

Download the article from SSRN at the link.

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Law Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Download the article from SSRN at the link.

Tsai and Ziegler on Abortion Politics and the Rise of Movement Jurists @robertltsai @BU_Law @maryrziegler @UCDavisLaw

Robert L. Tsai, Boston University School of Law, and Mary Ziegler, University of California, Davis, School of Law, are publishing Abortion Politics and the Rise of Movement Jurists in volume 57 of the UC Davis Law Review. Here is the abstract.

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena. In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists. Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty. We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

Download the article from SSRN at the link.

Abrams on References to Robert Frost's Poetry in Advocacy and Judicial Opinions @MizzouLaw @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published References to Robert Frost’s Poetry in Advocacy and Judicial Opinions. Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.

Download the essay from SSRN at the link.

Conklin on Why Judges Should Refrain From Pop Culture References In Judicial Opinions @AngeloState

Michael Conklin, Angelo State University, Business Law, has published 'Be a Lot Cooler if You Didn’t': Why Judges Should Refrain from Pop Culture References in Judicial Opinions. Here is the abstract.

The use of pop culture references in judicial opinions—sometimes referred to as “dropping pop”—is unfortunately a growing trend. This Article presents the 2021 Briseño v. Henderson opinion as an illustration of the harms of unnecessary pop culture references. It provides a thorough analysis of the numerous ways in which pop culture references in judicial opinions are ill advised. It also addresses the arguments in favor of the practice, providing counterarguments to show why any purported benefits are exaggerated and far outweighed by the downsides. Then advice for judges, including best practices, is given. The Article concludes by providing suggested language for the Model Code of Judicial Conduct regarding pop culture references. Pop culture references are often misunderstood, which can lead to a misunderstanding of the case. Traditionally marginalized populations are particularly vulnerable to this, as they often do not share the same exposure to pop culture as predominantly white judges. They result in litigants believing that the judge was arbitrary, irreverent, and making fun of their plight. They blur the lines between fictional entertainment and the real-life legal system. They are perhaps indicative of a judge who is focusing on self-promotion at the cost of sound legal analysis. And they can be distracting, especially when the reader finds the reference offensive. Any net benefit gained by the entertainment value some experience from a pop culture reference is offset by the confusion and disagreement by others. And pop culture references are not necessary to create an engaging opinion. These references can serve as “seductive details” drawing attention away from the legal holding. They are likely not as persuasive as some advocates claim, and even if they were, persuasion is not a primary goal of a judicial opinion. The general public may find pop culture references in judicial opinions interesting, but this likely comes at the cost of diminished respect for the judicial system.

Download the article from SSRN at the link.

Abrams on References to Aesop's Fables in Judicial Opinions and Written Advocacy

Douglas E. Abrams, University of Missouri School of Law, has published References to Aesop's Fables in Judicial Opinions and Written Advocacy at 77 Journal of the Missouri Bar 24 (Jan.-Feb. 2021). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.

Download the article from SSRN at the link.

Oseid on Judge John T. Noonan Jr. and Writing With Empathy to Prove That the Human Person Is Central to the Law

Julie A. Oseid, University of St. Thomas School of Law (Minnesota), is publishing I See You: Judge John T. Noonan, Jr. Writing with Empathy to Prove that the Human Person is Central to the Law in the University of St. Thomas Law Journal (2021). Here is the abstract.

Long before he became a judge, Judge John T. Noonan, Jr. recognized and highlighted “the central place of the human person in any account of the law.” One of his intellectual legacies as a federal circuit court judge was recognizing the persons, not masks, who appeared before him. How did he do it? Empathy. Judge Noonan’s capacity for empathy as a judge extended beyond his ability to step into the shoes of someone whose life was very different from his own—he was able to write about that person’s encounter with the law in a way that makes you, the reader, also relate to the person with empathy. This article focuses on Judge Noonan’s opinions in three areas of law spanning three decades: civil rights, employment, and criminal law. Judge Noonan believed that you cannot love someone you cannot see. I will focus on how the details of his judicial writing—word choice, concision, and narrative techniques—furthered his philosophy of respecting the dignity of every human. He saw them. We do, too.

Download the article from SSRN at the link.

Shugerman on Removal by Judiciary and the Imaginary Unitary Executive @jedshug

Jed Handelsman Shugerman, Fordham Law School, has published The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) as Fordham Law Legal Studies Research Paper No. 3597496. Here is the abstract.

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions: 1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. The switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity… 2) …and a Senator’s diary indicates the Senate sponsors, to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A cryptic comment by a presidential House member hinted at this strategy. 3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.” 4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy. 5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate. 6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years. 7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power. For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.

Download the article from SSRN at the link. Part One is available here.

Lopez on The Law of Gravity @Rachel_E_Lopez

Rachel Lopez, Drexel University School of Law, Yale University Law School, is publishing The Law of Gravity in the Columbia Journal of Transnational Law. Here is the abstract.

Gravity is frequently referenced in treaties, judicial decisions of international and regional bodies, human rights reports, and the resolutions and proclamations of various bodies of the United Nations. These documents refer to certain violations of international law as being “gross,” “serious,” and “grave.” These terms are frequently used interchangeably but seldom defined, and it is often unclear what makes a violation particularly grave. Is it the extreme harm to the victim, the type of violation involved, who committed the violation, or rather the intention of the wrongdoer? Despite the lack of clarity around the concept, classifying a violation as grave has significant legal consequences under international law. Gravity can determine whether an international court has jurisdiction to prosecute a crime or when a treaty monitoring body can take up an issue. States are prohibited from selling arms to other States if they commit grave violations of human rights or humanitarian law. Gravity has also been used to justify military intervention or punishing a State more harshly for its wrongful acts. This Article brings more grounding to gravity by examining the concept in all of its forms and offers the first scholarly treatment of gravity across public international law as a whole. As legal history demonstrates, gravity is a, if not the, principal unifying force across international criminal law, human rights law, and humanitarian law. Despite the absence of a formal definition of grave violations, a close examination of gravity’s jurisprudence reveals a common set of factors that international courts and other entities typically weigh when determining that a violation is grave. Closer adherence to these factors will result in more uniform and cohesive accountability for those violations that are of most concern to humankind.

Download the article from SSRN at the link.

Abrams on References to Movies in Judicial Opinions and Written Advocacy, Part II @mobarnews @mizzoulaw

Douglas E. Abrams, University of Missouri School of Law, has published References to Movies in Judicial Opinions and Written Advocacy, Part II, at 75 Journal of the Missouri Bar 297 (Nov-Dec. 2019). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity.

Download the article from SSRN at the link.

Part I is available here.

Kerr on The Perfect Opinion @GeorgetownLaw

Andrew Jensen Kerr, Georgetown University Law Center, has published The Perfect Opinion. Here is the abstract.

In this Article I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about *us*. So why do judges often select non-authoritative opinions (alternative concurrences, or dissents) or no-citation opinions (that don’t cite to prior case law) when asked of their favorite opinion? We might predict that most judges would select, for example, a Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine. Instead it seems that at least some judges share a critical perspective that citation is a “mask hiding other considerations” , and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on first principles reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we have to work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it.

Download the article from SSRN at the link.

Craig on Judicial Audiences: A Case Study of Justice David Watt's Literary Judgments @SchulichLaw

Elaine Craig, Dalhousie University School of Law, is publishing Judicial Audiences: A Case Study of Justice David Watt's Literary Judgments in volume 64 of the McGill Law Journal (2019). Here is the abstract.

Applicants to the federal judiciary identify three main audiences for their decisions: the involved and affected parties, the public, and the legal profession. This case study examines a set of decisions authored by Justice David Watt of the Ontario Court of Appeal, involving the rape, torture, murder or attempted murder of women, in which he attempts humour or uses puns, parody, stark imagery and highly stylized and colloquial language to introduce the violence, or factual circumstances surrounding the violence, in these cases. It assess these introductions in relation to the audiences judges have identified as important for their decisions. The study concludes that these literary introductions may not speak productively to any of the three audiences identified as critical by applicants to the federal judiciary. For example, Justice Watt’s writing in these introductions does not reflect the empathy and sensitivity that some judges have identified as an important feature of writing that is intended for the parties (in their applications for appointment). The study also highlights two interrelated factors that judges should consider when writing decisions involving gender-based violence with a view to the public audience that these decisions are likely to receive. These factors are the crisis of public faith in the legal system’s ability to respond appropriately to incidents of gender-based harm, and the importance of writing judicial decisions that do not obscure the social context and dynamics that produce gender-based violence. Justice Watt’s unorthodox writing in these cases does not reflect consideration of these factors. Justice Watt’s short, staccato style introductions to decisions have received attention. His introductions, which differ from the conventional style of legal judgments, have been the subject of legal blogs, mainstream media articles, and professional praise and criticism. Decisions that include intentional stylistic departures from conventional judicial writing, including the ones written by Justice Watt, raise particular issues regarding the notion of judicial audience. Justice Watt’s departure from the conventional style of legal writing, particularly given the gruesome and tragic facts involved in many of the decisions he has written, raises numerous questions: Who is the audience for these literary judgments? What are some of the attendant risks of delivering literary judgments to particular audiences? Do Justice Watt’s literary judgments speak appropriately and productively to the three constituencies for court decisions identified by judges themselves: the parties (understood broadly), the public, and the legal profession?

Download the article from SSRN at the link.

Abrams on References To Television Shows in Judicial Opinions and Written Advocacy (Part I) @mobarnews

Douglas E. Abrams, University of Missouri School of Law, has published References to Television Shows in Judicial Opinions and Written Advocacy (Part I) at 75 Journal of the Missouri Bar 25 (Jan.-Feb. 2019). Here is the abstract.

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity.

Download the article from SSRN at the link.

Funny, Funny Judges @laphamsquart

Lapham's Quarterly offers this selection of interesting footnotes from cases, some well-known, some obscure. Included is a Ninth Circuit case that introduces the phrase, "Holy Copyright Law, Batman!" to the legal lexicon, and a cite to "Who Let the Dogs Out?" with the wry comment from Judge Philip S. Straniere that although the song "allegedly has nothing to do with canines[,] ...I have not been able to understand the lyrics to any song written since the Fillmore East closed, I have appropriated the title solely to make a point and will ignore the content of the song."

Weisberg on Cardozo's "Law and Literature": A Guide To His Judicial Writing Style

Richard Weisberg, Cardozo School of Law, has published Cardozo's 'Law and Literature': A Guide to His Judicial Writing Style at 34 Touro Law Rev. 349 (2018). Here is the abstract.

Weisberg traces Judge Cardozo's advice about legal writing to the famous 1925 essay LAW AND LITERATURE and applies it to the judicial opinions and other published works of Cardozo and various other judges.

Download the essay from SSRN at the link.

Literature and the Judicial Opinion

Via Benjamin Woodring, news that Judge Michael Baylson went literary in his ruling in favor of the City of Philadelphia, finding that the federal government cannot cut off funding because the city insists it will only surrender undocumented immigrants if the feds have proper warrants. Here, courtesy of Dr. Woodring, is a link to Judge Baylson's opinion. It begins with quotations from Hamlet and Coriolanus and from Dr. Woodring's own article Liberty to Misread, published in the Yale Journal of Law & the Humanities, and continues to the Odyssey.

I think a lot of literature profs out there must be very pleased! More about the law and literature references in this opinion here in an Atlantic essay by Walt Hunter of Clemson University, one of the aforementioned lit profs.

Law and the humanities lives!

Mignanelli on John Grisham's Appearances in Judicial Opinions @nmignanelli

Nicholas Mignanelli, University of Miami School of Law, is publishing The Runaway Judge: John Grisham's Appearance in Judicial Opinions in volume 48 of the University of Memphis Law Review (2018). Here is the abstract.

Each year, countless scholars publish articles in law reviews across the country hoping to have some impact on the way courts interpret and apply the law. To have one’s labors approvingly cited or discussed by a court is one of the highest compliments a legal scholar can receive. Thus, it is the height of irony that judicial opinions have discussed or alluded to the works of novelist John Grisham — an attorney who has never authored a law review article — over two dozen times. This study begins with an explanation of methodology and an annotated bibliography of the results. Next, the author discusses the various ways that courts have used Grisham’s works, categorizing each case according to its function. The author concludes with further speculation about why judges are drawn to Grisham’s novels.

Download the article from SSRN at the link.

Allen on Doctrinal Reasoning as a Disruptive Practice

Jessie Allen, University of Pittsburgh, School of Law, is publishing Doctrinal Reasoning as a Disruptive Practice in volume 6 of the Journal of Law and Courts (2018). Here is the abstract.

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Download the article from SSRN at the link.

Del Gobbo on Unreliable Narration in Law and Fiction @danieldelgobbo

Daniel Del Gobbo has published Unreliable Narration in Law and Fiction, 30 Canadian Journal of Law and Jurisprudence 311 (2017). Here is the abstract.

This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.