My thanks to Richard Bronaugh and John Smillie for helpful comments on earlier versions of this paper.

1. See Pildes, Richard H., “Forms of Formalism” (1999) 66 U. Chicago L. Rev. 607 at 609CrossRefGoogle Scholar (“classical legal formalism”); Mensch, Elizabeth, “The History of Mainstream Legal Thought” in Kairys, David, ed., The Politics of Law, 2nd ed. (New York: Pantheon Books, 1990) 13 at 18-21Google Scholar (“classical legal consciousness”).

2. Kronman, Anthony, The Lost Lawyer (Cambridge, MA: Harvard University Press, 1993) at 173 Google Scholar: “Once the basic premises of a particular branch of law have been established, the remaining task is one of ratiocination only. The many subrules that fill out the doctrinal detail on any legal subject can, Langdell assumes, be drawn by implication from its foundational principles, whatever these may be. On this view, for example, it is possible to produce a full and accurate account of the law of contracts merely by analysing the elementary notions of mutuality, intention, and consideration on which it rests.”

3. Tamanaha, Brian, Law as a Means to an End: Threat to the Rule of Law (New York: Cambridge University Press, 2006) at 48 CrossRefGoogle Scholar: “[Classical F]ormalist views of law can be pared down to two core notions, conceptual formalism and rule formalism. Conceptual formalism was the idea that legal concepts and principles, like property ownership, liberty of contract, and duty in torts, had necessary content and logical interrelations with one another, which could be discerned through reason, constituting a coherent, internally consistent, comprehensive body of law. Rule formalism was the idea that judges could reason ‘mechanistically’ from this body of law to discover the right answer in every case.”

4. Schauer, Frederick, “Formalism” (1988) 97 Yale L. J. 509 at 510 Google Scholar.

5. Ibid. at 527-28.

6. Ibid. at 543-44.

7. Scalia, Antonin, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” in Gutmann, Amy, ed., A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ: Princeton University Press, 1997) 17–18 Google Scholar. See also Molot, Johnathan, “The Rise and Fall of Textualism” (2006) 106 Colum. L. Rev. 1 at 30Google Scholar: “From the late nineteenth century through the Warren Court era and beyond, purposivist judges had purported to base their decisions on Congress’s statutory purposes. By highlighting the creativity inherent in this purposivist search for meaning, textualists demonstrated that these purposivist judges were imposing their own purposes, rather than implementing congress’s. By shifting the emphasis away from statutory purposes and towards statutory language, textualists emphasized that they could at least cabin judicial leeway and limit judicial creativity.”

8. Schauer, supra note 4 at 535. See also 537-39.

9. Ibid. at 526. See, too, 528: “Contextual understanding might be necessary to determine whether a given application does or does not serve the purposes of a rule’s framers. Yet the rule itself communicates meaning as well, although that meaning might depart from the purposes behind the rule or from the richer understanding to be harvested from considering a wider range of factors than the rule’s words. That we might learn more from considering additional factors or from more fully understanding a speaker’s intentions does not mean that we learn nothing by consulting the language of rules themselves.”

10. Ibid. at 544. See also 547-48: “More likely, formalism ought to be seen as a tool to be used in some parts of the legal system and not in others …. [W]e must ask what the legal system, in whole or in part, is supposed to do, for only when we answer that question can we determine what kinds of tools it needs to accomplish that task.”

11. Ibid. at 514.

12. Ibid.

13. Manning, John, “What Divides Textualists from Purposivists?” (2006) 106 Colum. L. Rev. 70 at 92 Google Scholar.

14. Scalia, supra note 7.

15. Michaels, Walter Benn, “Against Formalism: The Autonomous Text in Legal and Literary Interpretation” (1979) 1 Poetics Today 23 CrossRefGoogle Scholar; Knapp, Steven & Michaels, Walter Benn, “Against Theory” in Mitchell, W.J.T., ed., Against Theory. Literary Studies and the New Pragmatism (Chicago, IL: University of Chicago Press, 1985) 11 Google Scholar; Knapp, Steven & Michaels, Walter Benn, “Not a Matter of Interpretation” (2005) 42 San Diego L. R. 651.Google Scholar

16. Alexander, Larry & Prakash, Saikrishna, “‘Is That English You’re Speaking?’ Why Intention Free Interpretation is an Impossibility” (2004) 41 San Diego L. R 967.Google Scholar

17. Fish, Stanley “Interpretation is not a theoretical issue” (1999) 11 Yale J. Law and the Humanities 509 Google Scholar; Fish, Stanley, “There Is No Textualist Position” (2005) 42 San Diego L. Rev. 629 Google Scholar; Fish, Stanley, “Intention is All There Is: A Critical Analysis of Aharon Barak’s Purposive Interpretation in Law ” (2008) 29 Cardozo L. Rev. 1109.Google Scholar

18. Michaels, supra note 15 at 31-32.

19. Fish, supra note 17 (2005) at 632-33. See also 635: “A text whose meaning seems perspicuous and obvious right off the bat is a text for which an intentional context has already been assumed …. It is the specification or assumption of intention that comes first; the fact of a text with meaning comes second. The text, in short, has no independence; it is an entirely derivative entity— something else (an animating intention) must be in place before it can emerge, as text—and as a derivative entity it cannot be said to be the source or location of meaning.”

20. Knapp & Michaels (2005), supra note 15 at 655.

21. Schank, Peter, “Understanding Postmodern Thought and its Implications for Statutory Interpretation” (1992) 65 S. Cal. L. Rev. 2505 at 2523 Google Scholar. And let us not forget Cat Stevens and CAT scans. For more on the “cat” example see Alexander & Prakash, supra note 16 at 977.

22. Alexander & Prakash, supra note 16 at 974-75 (“Argument One: Texts Cannot Declare the Language in Which they Are Written”).

23. Knapp & Michaels (2005), supra note 15 at 658.

24. “[W]hat the dictionary gives us is a record of the intentions previous speakers have had when using a word, a record, that is, of possible and multiple meanings absent any way of specifying which is the right (that is, intended) one; (and besides, the next intender may well extend the range of usage—that is often how lexical change occurs—in a way that will require the revision of the dictionary).” Fish (2005), supra note 17 at 644.

25. Knapp & Michaels (2005), supra note 15 at 657.

26. Fish (2005), supra note 17 at 634. See also Alexander & Prakash, supra note 16 at 978 where they make the same point with “gleeg, gleeg, gleeg.”

27. Words can also be used ironically, which involves using words with conventional meanings in contexts where the meaning is understood to be the opposite of what is usually understood. See for example the analysis of “With the compliments of the author” in Fish, Stanley, Doing What Comes Naturally (Durham, NC: Duke University Press, 1989) 41 Google Scholar-42.

28. Fish, Stanley, “The Intentional Thesis Once More” [unpublished paper, quoted with permission of the author].Google Scholar

29. Fish (2008), supra note 17 at 1124.

30. Knapp & Michaels (1985), supra note 15 at 16.

31. Alexander & Prakash, supra note 16 at 976: “Argument two: Texts cannot declare that they are texts …. Without an author, real or hypothetical, intending to convey a meaning through these marks, our seemingly grand Constitution [generated by a monkey hitting a keyboard] is nothing but a randomly generated mass of inked shapes that merely resembles a text …. Our simple point is that one cannot look at the marks on a page and understand those marks to be a text (that is, a meaningful writing) without assuming that an author made those marks intending to convey a meaning by them.”

32. Fish, Stanley, “Intentional Neglect” New York Times (19 July 2005) A 21 Google Scholar. See also Fish (2005), supra note 17 at 632: “And what if no intention were in place? In that case not only would there not be a meaning; there would be no reason to seek one. That is, if I were persuaded that what I was looking at or hearing was not animated by any intention, I would regard it not as language, but as random marks—akin to the ‘garbage’ one types in when testing to see if the font is one you like—or mere noise, throat clearings.”; Fish (1999), supra note 17 at 510: “In the absence of an intention already assumed the words will not speak at all, but will be just random marks or noises.”

33. Fish (2005), supra note 17 at 635.

34. Knapp & Michaels (1985), supra note 15 at 12.

35. Fish (2005), supra note 17 at 629.

36. Ibid. at 631.

37. Knapp & Michaels (2005), supra note 15 at 659. Alexander and Prakash also disparage the claims of those who say that they approach legislation as textualists by noting the way such people quickly abandon textualism when faced with cases of absurdity and “scrivener’s error.” They imagine a statute dealing with environmental pollution which has ten provisions dealing with “cars” and an 11^th provision dealing with “cas.” Would a textualist judge decide that the 11th provision was gibberish? If the 11th provision referred to “carp,” would a textualist judge require emission control devices to be placed on fish? The fact that judges would correct the obvious typographical errors shows that they are not relying on conventional word meaning alone, but are relying on authorial intention. Alexander & Prakash, supra note 16 at 978-82 and Appendix I. For a textualist response, see Gold, Andrew S. “Absurd results, Scrivener’s Errors, and Statutory Interpretation” (2006) 75 U. Cin. L. R. 25 Google Scholar.

38. Alexander & Prakash, supra note 16 at 968-69.

39. Michaels, supra note 15 at 26.

40. Ibid.

41. Ibid. at 27.

42. Quoted in ibid. at 25.

43. Trident Center v. Connecticut General LifeInsurance Company, 847 F. 2d. 564 (9th Cir. 1988)Google Scholar. Fish’s discussion of the case is in Fish, Stanley, There’s No Such Thing as Free Speech … and it’s a Good Thing, Too (New York: Oxford University Press, 1994) at 144-46Google Scholar.

44. Fish, Stanley, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, MA: Harvard University Press, 1980) at chs. 11, 14Google Scholar.

45. Fish, supra note 27 chs. 6, 13, 21.

46. Ibid. at 329.

47. Ibid. at 386-87, 391. For a detailed analysis of Fish’s argument, see Robertson, Michael, “Does the Unconstrained Legal Actor Exist?” (2007) 20 Ratio Juris 258.CrossRefGoogle Scholar

48. Fish, Stanley, “One More Time” in Olson, Garry & Worsham, Lynn, eds., Postmodern Sophistry. Stanley Fish and the Critical Enterprise (Albany, NY: State University of New York Press, 2004) at 279.Google Scholar

49. Ibid. at 276.

50. Fish, supra note 43 at 301. See also Fish, supra note 27 at 513: “The question is not whether there are in fact plain cases—there surely are—but, rather, of what is their plainness a condition and a property? Hart’s answer must be that a plain case is inherently plain, plain in and of itself, plain independently of the interpretive activities it can then be said to direct. But it takes only a little reflection to see that the truth is exactly the reverse …. Plainness, in short, is not a property of the case itself—there is no case itself—but of an interpretive history in the course of which one interpretive agenda—complete with stipulative definitions, assumed distinctions, canons of evidence, etc.—has subdued another.”

51. Fish, supra note 43 at 145.

52. Lofaso, Anne Marie, “Toward a Foundational Theory of Workers’ Rights: the Autonomous Dignified Worker” (2007) 76 UMKC L. R. 1 at 8Google Scholar. She is describing the account given in Cooter, Robert & Ulen, Thomas, Law & Economics, 4th ed. (Toronto, ON: Pearson Addison Wesley, 2004) 48.Google Scholar

53. See Searle, John, “Literal Meaning” in Ex Pression and Meaning (New York: Cambridge University Press, 1979) at 117.CrossRefGoogle Scholar

54. Fish, supra note 27 at 326-27. See also Searle, John, The Construction of Social Reality (London: Penguin, 1995) at ch. 6. For a fuller description and evaluation of Fish’s position, see Robertson, Michael, “Picking Positivism Apart: Stanley Fish on Epistemology and Law” (1999) 8 S. Cal. Interdisciplinary L. J. 401 Google Scholar.

55. Fish (1999), supra note 17 at 509.

56. Ibid. at 510-11.

57. Fish (2005), supra note 17 at 643-44. See also Fish (1999), supra note 17 at 510: “[T]he assignment of intention can be, and often is, the occasion for dispute, and for a dispute that cannot be settled by pointing to the words since the words will only say what they will say in the light of an intention, and will say different things in the light of different intentions.”

58. Fish (2005), supra note 17 at 648-49. See also Fish (1999), supra note 17 at 510: “[T]he thesis that interpretation is the attempt to determine intention in no way privileges the author as an interpreter.”

59. Knapp & Michaels (2005), supra note 15 at 668.

60. Fish (2005), supra note 17 at 640.

61. Ibid. at 644-45.

62. Ibid. at 636-39.

63. Fish, supra note 27 at 94. See also 514-15, 523 and Fish, supra note 43 at 271.

64. Fish, supra note 32. See Alexander & Prakash, supra note 16 at 970, n. 3: “Whenever the precedent incorrectly interprets the intentions of the lawmakers, application of stare decisis in subsequent cases is obviously inconsistent with courts’ being faithful agents of the lawmakers …. Even when the precedent correctly interprets the intentions of the lawmakers, so that application of stare decisis in subsequent cases does not result in a departure from those intentions, the courts applying stare decisis will not be acting as the lawmakers’ faithful agents; rather, they will be acting as faithful agents of the precedent setting court.”

65. Fish (2008), supra note 17 at 1133-34 and 1144-45. See Knapp & Michaels (2005), supra note 15 at 659-60.

66. Alexander, Larry, “‘With Me, It’s All er Nuthin’: Formalism in Law and Morality” (1999) 66 U. Chicago L. Rev. 530 CrossRefGoogle Scholar; Alexander, Larry & Schauer, Frederick, “Law’s Limited Domain Confronts Morality’s Universal Empire” (2007) 48 Wm. & Mary L. Rev. 1579 Google Scholar.

67. Alexander & Prakash, supra note 16 at 970. See also 971-72, 983.

68. See Robertson, Michael, “Telling the Law’s Two Stories” (2007) 20 Can. J. Law & Juris. 429.CrossRefGoogle Scholar

69. See supra note 63.

70. Schauer may be an exception here. See supra note 10 and accompanying text.

71. Tamanaha, supra note 3, ch. 8 (“Instrumentalism in the Legal Profession”).

72. Fish, supra note 43 at 161.

73. For more detail, see Robertson, supra note 68.

74. Thomson, Edward P., Whigs and Hunters (New York: Peregrine Books, 1977) at 258 Google Scholar-69.

75. Ibid. at 264.