Tuesday, March 24, 2009

Schlag vs. Posner

The Georgetown Law Journal has a couple of entertaining pieces, one by Pierre Schlag (a law professor and long-time critic of legal scholarship) and a response from Judge Richard Posner (one of the most prolific and influential legal scholars of all time).

In addition to lambasting legal scholarship as "dead," Schlag disparages rankings of law schools:
While for law schools and law professors, these rankings do create a certain anxiety, there is also an anxiety-relieving function served. Indeed, any doubts that we might have about the value of what law schools and legal thinkers do are eclipsed by our intense fixation on how good we are at doing it relative to each other. We don’t have to worry that the enterprise might be entirely worthless if we’re totally fixated on how well or how badly we are doing it relative to everybody else.
Schlag compares legal scholarship to imaginary bus schedules:
It’s as if we were all working really hard on an imaginary bus schedule. Someone writes an article saying we need to optimize the number of buses. Another person can’t resist pointing out that it might be preferable to start by optimizing the number of bus stops instead. Soon someone writes that we should reconstruct the entire schedule. Someone else will suggest that we should split the schedule along eight different parts. Someone says, the eight parts are really sixteen. Some truly original thinker says there are ten. And then, some ranker comes along and starts ranking whose law school has the best bus scheduling program going. And somebody else decides to hold a symposium on bus schedule rankings. (Remember the traveling show on Bush v. Gore?) And then fifty years from now, someone will write a book: How Should the Bus Schedules of 2000-Whatever Have Been Decided?

Pretty soon, we’ve got a collective imaginary going and we’re pushing buses and bus stops all across pages of the Yale Law Journal and it all feels kind of real and pretty important. And it’s not hard to believe that it’s important. For one thing people are getting real rewards—prestige jobs, chairs, program funding—for imaginary bus schedule breakthroughs. And adding to the increasing reality of the thing is the undeniable fact that we can’t just dismiss buses or bus schedules as unreal. (If everything else fails, by the way, this is your takeaway: Buses are real.)

But the thing of it is, our legal academic bus schedule remains imaginary. Even if it looks a lot like the real thing, it’s still imaginary. When we put out our bus schedule, no buses run.
Schlag adds this dig at constitutional scholarship:
And then there’s the normativity thing. I once read an article that purported to elaborate about what the Constitution should be. Now what struck me as odd was that the author really did want to free himself (and his reader) from any official pronouncements of what the Constitution is. This struck me as incredibly weird. What an odd thing to do. If the question “What should the Constitution be?” is not anchored in what the Constitution is (whatever that might be), then why not go for broke: I say let’s have a constitution that guarantees universal health care, tastes a lot like Ben & Jerry’s ice cream, and is laugh-out-loud funny. You leave it to me? I say: Go big.
For his part, Posner says (with typical bluntness) that he initially thought Schlag's article was "crazy," but then rethought on further reading. And it does seem that Posner has several points of agreement with Schlag. Such as this:
If ninety-nine percent of all the books and articles that have been written about constitutional law, including those written in 2007, were pulped, there would be a net social gain from just the saving in the cost of storage. Think of the hundreds of articles written about Roe v. Wade and the other Supreme Court abortion cases: have any of these articles the slightest significance beyond registering their authors’ convictions about the emotional subject of abortion? And the constitutional theories—originalism, textualism, representation reinforcement, passive virtues, active liberty [a dig at Justice Breyer there!], the living Constitution, the moral reading of the Constitution, intertextuality, and the rest—have any of them real intellectual depth or are they mainly just rationalizations of their authors’ political ideology?


Blogger Paul said...

What is the difference between a constitutional law and statutory law, say statutes against murder? The difference may be that statutes take us out of the social contract theorists' state of nature (protecting negative liberty), and the Constitution is an expression of the society's aspirations (toward positive liberty). So while Posner is correct that articles addressing constitutional interpretation are politically motivated, maybe that is one goal of Constitutional laws: to create a legal context through which to debate and assert (and safeguard) aspirational goals for the country.

8:43 PM  
Blogger Michael Drake said...

"If the question “What should the Constitution be?” is not anchored in what the Constitution is (whatever that might be), then why not go for broke...."

Perhaps because the answer to the question "What is the Constitution?" requires that we answer the question "What should the Constitution be?" (To echo part of Paul's point.)

Anyway, sure, "nothing's happening" in legal scholarship today. But then for the most part nothing's happening in anything today. For the most part, nothing ever happened in anything. For every diamond there is a vast dunghill, and it has always been so; it only seems like there's more dunghill today because we haven't had enough time yet to find the newer diamonds.

4:48 PM  
Blogger Paul said...

Can anyone recommend a book describing the unique legal function of the U.S. Constitution (as opposed to statutes or common law)?

12:04 AM  
Blogger John Henry said...

While Schlag makes an amusing point here, he characteristically overstates his case. It's hard to argue, for example, that second amendment scholarship hasn't had some degree of influence on the Court. I read an article of Schlag's a while back in the Stanford Law Review, which was basically a normative case against making normative arguments. The argument collapsed on itself; he seems to have wisely set his sights lower here, but I think he's still overstating the argument.

9:44 AM  

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