I realise that this is relatively old news, but is anyone else still dissatisfied with Lessig's interpretation of the two Bernstein cases? I was with him right up until the point that he denied he was making a claim as to the judge's intention or state of mind. It seemed until thaen that he was making a variation of the familiar legal realist argument. But now it's abundantly clear that he was not. Now he claims he was simply "making the decisions the best decisions they could be." How so?

Indeed, it seems that Lessig is simply grafting on a conceptual bridge ex post facto, embracing a strained consistency the judge himself might well have rejected. That strikes me as a very dangerous exercise, akin to forcing square pegs into round holes. If the decisions contradict one another then perhaps we should appreciate the anomaly and leave it at that. Otherwise, if we try to draw broad doctrinal conclusions from such ambiguous cases there seems a high probablity that bad law will be the result--that the inherently speculative nature of the exercise will fatally distort any principles that emerge.

Then again, perhaps Lessig is a closet post-modernist, someone for whom an author's intent is far less important than opening up the texts's intepretive possibilities--in this case, making decisions "the best decisions they can be." An intriguing possibility, eh?

cheers, andy

-- Anonymous, October 02, 1998