Document Type

Article

Publication Date

Spring 2024

Abstract

The Pennsylvania Supreme Court just shot holes through the United States Supreme Court’s revanchist reading of precedent and history in to support overturning Roe in Dobbs. In Allegheny Reproductive Health Center, both the majority and the powerful concurring opinion explore the oppression inherent in both past and current conditions for women, concluding that ignoring that context makes rendering legal opinions affecting women’s rights either impossible or nonsensical. Can courts really do that? We think they not only can, but that they must.

In this article, a scholar of law and a scholar of literature work together to consider what it really means to read law. Amid ongoing debate about the proper roles of courts and legislatures, we use tools common to literary criticism to think about the boundaries of interpreting legal rules and legal opinions. In contrast to the narrow rigidity of pure textualism, we contend that reasoning with an awareness of historical and contemporary cultural context is vitally important to understanding what laws mean and how they should be applied.

The article urges what we call “attentive reading”: complex, layered, and contingent examination of meaning that is rarely satisfied with concluding that just one perspective is inherently “correct.” We do not mean to suggest that all possible interpretations of text are equally valuable, or that some are not better than others. Rather, we argue that understanding can—and therefore should be—enhanced and enriched with thoughtful consideration of the context of laws and legal opinions that is revisited and revised over time. The paper draws insight from diverse sources in the American literary canon, then turns to consider the work of one important judicial voice in the South African Constitutional Court, because the interpretive tools used by an especially attentive jurist to understand a comparatively recent Constitution may be instructive to readers of U.S. law.

Comments

Rutgers Journal of Law and Public Policy, Vol. 21, Issue 2 (Spring 2024), pp. 211-248

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