In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with r... more In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.\u27 Through historically momentous scholarship and national and international legal advocacy spanning a thirty year career in public life, she has largely succeeded in doing so. Most visibly, from within law\u27s perspective, MacKinnon invented a new plot by fundamentally restructuring our civil rights law, and she did so by reconceiving the ideal of equality that is at that law\u27s heart. As is now well recognized, she did so in a two step argument: She first exposed the relative emptiness of a formal understanding of the ideal of equality that seeks solely to rationalize the treatment of men and similarly situated women-an approach which, virtually by definition, does little but provide a modest boost for women who are already relatively well-off. She then provided an alternative, substantiv...
Interpretive constitutional debate over the last few decades has centered on two apparently linke... more Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The constitutional faithful argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of that determinacy, judicial review can indeed be brought within the rubric of liberalism. Taking issue with the constitutional faithful is a group who might be called constitutional sceptics. Scholars in this group see, in every constitutional phrase or doctrine, the possibility of multiple interpretations, and in the...
The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his b... more The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators,...
First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Co... more First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, and third, that one possible way for law to contribute constructively to a mor...
The article aims to make problematic the relative absence of questions about the affirmative duti... more The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide protection of the laws.” If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach
Professor Levinson has wisely called for an extended conversation regarding the possibility and d... more Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point. Thus, I think Levinson\u27s claim is essentially right, and I would like to make two friendly amend...
This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as po... more This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon\u27s theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon\u27s critique of desire, which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral -- neither critical nor confident -- regarding the degree to which our desires, if fulfilled, will give pleasure, and whether their satiation will serve our interests. What we should doubt, I will argue, are not women\u27s sexual desires but rather women\u27s sexual choices to engage in sex -- of any description -- that is not desired. In other words, it is the undesired sex in which we engage, and not either the sex we desire, or the ...
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely laud... more The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment. The court did so, however, b...
Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a comm... more Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our negative right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory. Furthermore, according to Dripps, the expropriation of sex through nonviolent means may also be wrong, and even criminally so, depending upon the means used. It is much more difficult, however, to distinguish those sexual transactions that result from impermissible, albeit nonviolent, pressures from those that result from pressures that, although perhaps not commendable, are not sufficiently egregious to be made the target of the crimin...
In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary a... more In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understa...
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psy... more The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law ...
What would be the consequences for modem progressive politics of the "rule of administration" pro... more What would be the consequences for modem progressive politics of the "rule of administration" proposed by Thayer a hundred years ago in his famous essay? In The Origin and Scope of the American Doctrine of Constitutional Law, 1 it will be recalled, Thayer proposed that the Supreme Court should only rule an act of Congress unconstitutional if the act is unconstitutional "beyond a reasonable doubt," ' 2 or, put differently, that the Court should not overrule a congressional act unless that act is clearly unconstitutional. 3 Would such a rule help or hinder progressive causes? Would a more restrained Court, and a less vigorously enforced Constitution, be an improvement over our present constitutional institutions, from an explicitly progressive political viewpoint? Would it leave the Congress freer to envision, and then to realize, a more egalitarian social order, and a freer individual and collective life? The question is complicated by the fact that Thayer's simple rule of administration appears to be susceptible to at least two plausible interpretations, each of which could have quite different consequences. First, Thayer's proposal, transported into modem politics, might be understood as urging that the Court and Congress each perform the same duties they presently perform and in more or less the same way, but that, as the title of the essay suggests, the scope of judicial review be restricted. The Congress should continue to legislate as it always has, and the Court should continue to adjudicate as it always has, but the Court should intervene and rule an act of Congress unconstitutional only if the congressional act is unconstitutional beyond all reasonable doubt. Alternatively, the rule might be understood in a quite different way. Thayer's "clearly erroneous" standard might be read as suggesting not only that the Court should, so to speak, cut the Congress some slack, but also that primary responsibility for constitutional decisionmaking should shift away from the Court and to the Congress. Under this second interpretation of Thayer's proposal, Congress, in the course of legislating, would also ex-* Professor of Law, Georgetown University Law Center. I would like to thank the participants at the Northwestern University School of Law Symposium for comments on an early draft of this Article. 1 James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). 2 Id. at 151.
We're here today for Peter. But to talk about the gem, it is necessary to talk a little about the... more We're here today for Peter. But to talk about the gem, it is necessary to talk a little about the setting. I met Peter when I moved to the law school from Syracuse in 1979 where I had been teaching law for a few years. He had been here since 1972. His colleagues David Bogen and Bill Reynolds, intellectual anchors of the law school, started roughly two years before Peter. Michael Millemann was hired two years after that, and Mike began to fashion the impressive system of clinics that we have today, which are fundamental to our mission in so many ways. Ken Abraham, Alice Brumbaugh, Gary Power, Alan Hornstein, and Bob Keller were here, and, soon after, Danny Goldberg and Tony Waters. At that point, the initial pieces were in place for Michael Kelly's visionary deanship. In 1974, Mike Kelly became dean of the law school and brought us into the modern world of legal education and also into our own distinctive character. Five years later, I started here, feeling as if I had walked into the Renaissance. The school was full of ability and energy, directed toward legal theory, clinical practice, public service and various alloys of those three things. And Peter was at its intellectual and collegial center. Each of us on the faculty was interested in what everyone else was doing. It was a supportive and exciting collegial atmosphere. Until the end of that decade, scholarship was not the price of promotion and tenure, and yet, out of interest, enthusiasm, and a sense of professional duty, Peter published his Yale Law Journal article on the Rosenberg case, Bill Reynolds his scathing Columbia Law Review piece on the injustice of unpublished opinions, and Dave Bogen a series of foundational articles on the First Amendment that are still widely cited. Ken Abraham began writing articles that made him the leading expert on insurance law and a contributor more generally to the field of law and economics. After a while, we hired Andy King,
In this article, I accept and hope to expand upon the conventional consensus view that The Path o... more In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the "prophecies" of judicial acts of power that are in the end all that "is meant by law;" and (3) the bath of "cynical acid" after which we will clearly perceive the law's contours -- support not one but at least three -- and possibly more -- understandings of, or interpretations of, legal positivism. Further, the differences between those three versions, although in impor...
Why is legal scholarship valued, required, pursued, and rewarded in the legal academy? What do le... more Why is legal scholarship valued, required, pursued, and rewarded in the legal academy? What do legal scholars contribute to the academic pursuit of knowledge? What does the pursuit of justice have to gain from legal scholarship? We take up these questions at a time of crisis. The scholarly mission of the legal academy is under unprecedented attack from all corners. Critics include the universities in which they are housed, the legal profession and the bench, law scholars themselves, and law schools' cost-conscious critics. So what is the cause for complaint? The Brief Against Legal Scholarship University colleagues fault legal scholarship for its lack of discipline and peer review, but also, and more fundamentally, question its point. Academic critics contend that legal scholarship, compared to scholarship from the social sciences and the humanities, is too "professional." It is brief writing or perhaps white paper writing in disguise. It is overly argumentative, political, or, most generally, too "normative," by which is meant simply that its aim is to state what the law should be, as well as what the law is. At its best, critics say, it seeks to develop a more just world, rather than a more knowledgeable one. Therefore, even the best of it is not true scholarship: it lacks true scholarship's defining goal of uncovering subtle and interesting truths through the pursuit of knowledge within the discipline of a recognized academic field. Critics from the Bar and the judiciary proffer the opposite complaint: that legal scholarship is not professional enough. The purpose of contemporary legal scholarship, according to professional critics, is obscure, and at least a good bit of it no longer seems primarily aimed at clarifying the law or suggesting pathways for the law to follow. It is of scant use to the practicing lawyer, and even less helpful for the sitting judge. Some judges brag that they don't bother to read it. For these critics, legal scholarship is too "academic." It is enamored with fads from other disciplines, and it is unmoored from any discipline or learning that is distinctively "legal." Law schools' legions of cost-conscious critics, with their eye on the bottom line, complain bitterly about legal scholarship's costs. Whatever might be its aim, tenured law professors with low course loads and high salaries produce far too much of it, driving up tuitions. It is a whole lot of costly nothing, these critics claim. The cost critique urges law professors to retreat from producing little-read and lowimpact scholarship toward teaching instead. The overall theme is that scholarly professors are eschewing the work of training students to be "practice ready" in favor of obscure research agendas and boutique seminars on overly precious topics that are of no use to practicing lawyers.
In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with r... more In the epigram to her most important book, Catharine MacKinnon sought to invent a new plot with respect to the ways men and women negotiate (or not) the terms of their planetary cohabitation.\u27 Through historically momentous scholarship and national and international legal advocacy spanning a thirty year career in public life, she has largely succeeded in doing so. Most visibly, from within law\u27s perspective, MacKinnon invented a new plot by fundamentally restructuring our civil rights law, and she did so by reconceiving the ideal of equality that is at that law\u27s heart. As is now well recognized, she did so in a two step argument: She first exposed the relative emptiness of a formal understanding of the ideal of equality that seeks solely to rationalize the treatment of men and similarly situated women-an approach which, virtually by definition, does little but provide a modest boost for women who are already relatively well-off. She then provided an alternative, substantiv...
Interpretive constitutional debate over the last few decades has centered on two apparently linke... more Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The constitutional faithful argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of that determinacy, judicial review can indeed be brought within the rubric of liberalism. Taking issue with the constitutional faithful is a group who might be called constitutional sceptics. Scholars in this group see, in every constitutional phrase or doctrine, the possibility of multiple interpretations, and in the...
The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his b... more The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of individuals understood capaciously. Rights may be positive or negative, legal, constitutional, political, institutional, or moral, and might have either libertarian and regressive or egalitarian and redistributive consequences. Regardless, we should think about our collective life through the lens of individual rights rather than through the lens of the moral duty of legislators,...
First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Co... more First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, and third, that one possible way for law to contribute constructively to a mor...
The article aims to make problematic the relative absence of questions about the affirmative duti... more The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide protection of the laws.” If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach
Professor Levinson has wisely called for an extended conversation regarding the possibility and d... more Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point. Thus, I think Levinson\u27s claim is essentially right, and I would like to make two friendly amend...
This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as po... more This article first aims to set out the feminist theory of Catharine MacKinnon as explicitly as possible and in a way that accounts for its incredible power. To strengthen MacKinnon\u27s theoretical project, the article proposes some modifications to the original that are drawn from, in part, the critiques of queer theorists. The crucial departure proposed here concerns MacKinnon\u27s critique of desire, which in my view is deeply mistaken. Rather than distrusting the sexual desires of women as hopelessly polluted by subordination, we should be neutral -- neither critical nor confident -- regarding the degree to which our desires, if fulfilled, will give pleasure, and whether their satiation will serve our interests. What we should doubt, I will argue, are not women\u27s sexual desires but rather women\u27s sexual choices to engage in sex -- of any description -- that is not desired. In other words, it is the undesired sex in which we engage, and not either the sex we desire, or the ...
The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely laud... more The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the people of California had tried to codify. Thus, the court struck down the state constitutional amendment. The court did so, however, b...
Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a comm... more Professor Dripps\u27s provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our negative right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory. Furthermore, according to Dripps, the expropriation of sex through nonviolent means may also be wrong, and even criminally so, depending upon the means used. It is much more difficult, however, to distinguish those sexual transactions that result from impermissible, albeit nonviolent, pressures from those that result from pressures that, although perhaps not commendable, are not sufficiently egregious to be made the target of the crimin...
In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary a... more In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? Why was it that for seven decades, well over half a century, Vere’s villainy was so obscure, even to so many legally sophisticated readers? In this article, I argue that the obscurity of Vere’s villainy resulted from the dominant legal theories developed over the past seven decades. This, in turn, explains the novelty of Weisberg’s understanding of Vere’s character: his understa...
The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psy... more The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law ...
What would be the consequences for modem progressive politics of the "rule of administration" pro... more What would be the consequences for modem progressive politics of the "rule of administration" proposed by Thayer a hundred years ago in his famous essay? In The Origin and Scope of the American Doctrine of Constitutional Law, 1 it will be recalled, Thayer proposed that the Supreme Court should only rule an act of Congress unconstitutional if the act is unconstitutional "beyond a reasonable doubt," ' 2 or, put differently, that the Court should not overrule a congressional act unless that act is clearly unconstitutional. 3 Would such a rule help or hinder progressive causes? Would a more restrained Court, and a less vigorously enforced Constitution, be an improvement over our present constitutional institutions, from an explicitly progressive political viewpoint? Would it leave the Congress freer to envision, and then to realize, a more egalitarian social order, and a freer individual and collective life? The question is complicated by the fact that Thayer's simple rule of administration appears to be susceptible to at least two plausible interpretations, each of which could have quite different consequences. First, Thayer's proposal, transported into modem politics, might be understood as urging that the Court and Congress each perform the same duties they presently perform and in more or less the same way, but that, as the title of the essay suggests, the scope of judicial review be restricted. The Congress should continue to legislate as it always has, and the Court should continue to adjudicate as it always has, but the Court should intervene and rule an act of Congress unconstitutional only if the congressional act is unconstitutional beyond all reasonable doubt. Alternatively, the rule might be understood in a quite different way. Thayer's "clearly erroneous" standard might be read as suggesting not only that the Court should, so to speak, cut the Congress some slack, but also that primary responsibility for constitutional decisionmaking should shift away from the Court and to the Congress. Under this second interpretation of Thayer's proposal, Congress, in the course of legislating, would also ex-* Professor of Law, Georgetown University Law Center. I would like to thank the participants at the Northwestern University School of Law Symposium for comments on an early draft of this Article. 1 James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). 2 Id. at 151.
We're here today for Peter. But to talk about the gem, it is necessary to talk a little about the... more We're here today for Peter. But to talk about the gem, it is necessary to talk a little about the setting. I met Peter when I moved to the law school from Syracuse in 1979 where I had been teaching law for a few years. He had been here since 1972. His colleagues David Bogen and Bill Reynolds, intellectual anchors of the law school, started roughly two years before Peter. Michael Millemann was hired two years after that, and Mike began to fashion the impressive system of clinics that we have today, which are fundamental to our mission in so many ways. Ken Abraham, Alice Brumbaugh, Gary Power, Alan Hornstein, and Bob Keller were here, and, soon after, Danny Goldberg and Tony Waters. At that point, the initial pieces were in place for Michael Kelly's visionary deanship. In 1974, Mike Kelly became dean of the law school and brought us into the modern world of legal education and also into our own distinctive character. Five years later, I started here, feeling as if I had walked into the Renaissance. The school was full of ability and energy, directed toward legal theory, clinical practice, public service and various alloys of those three things. And Peter was at its intellectual and collegial center. Each of us on the faculty was interested in what everyone else was doing. It was a supportive and exciting collegial atmosphere. Until the end of that decade, scholarship was not the price of promotion and tenure, and yet, out of interest, enthusiasm, and a sense of professional duty, Peter published his Yale Law Journal article on the Rosenberg case, Bill Reynolds his scathing Columbia Law Review piece on the injustice of unpublished opinions, and Dave Bogen a series of foundational articles on the First Amendment that are still widely cited. Ken Abraham began writing articles that made him the leading expert on insurance law and a contributor more generally to the field of law and economics. After a while, we hired Andy King,
In this article, I accept and hope to expand upon the conventional consensus view that The Path o... more In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the "prophecies" of judicial acts of power that are in the end all that "is meant by law;" and (3) the bath of "cynical acid" after which we will clearly perceive the law's contours -- support not one but at least three -- and possibly more -- understandings of, or interpretations of, legal positivism. Further, the differences between those three versions, although in impor...
Why is legal scholarship valued, required, pursued, and rewarded in the legal academy? What do le... more Why is legal scholarship valued, required, pursued, and rewarded in the legal academy? What do legal scholars contribute to the academic pursuit of knowledge? What does the pursuit of justice have to gain from legal scholarship? We take up these questions at a time of crisis. The scholarly mission of the legal academy is under unprecedented attack from all corners. Critics include the universities in which they are housed, the legal profession and the bench, law scholars themselves, and law schools' cost-conscious critics. So what is the cause for complaint? The Brief Against Legal Scholarship University colleagues fault legal scholarship for its lack of discipline and peer review, but also, and more fundamentally, question its point. Academic critics contend that legal scholarship, compared to scholarship from the social sciences and the humanities, is too "professional." It is brief writing or perhaps white paper writing in disguise. It is overly argumentative, political, or, most generally, too "normative," by which is meant simply that its aim is to state what the law should be, as well as what the law is. At its best, critics say, it seeks to develop a more just world, rather than a more knowledgeable one. Therefore, even the best of it is not true scholarship: it lacks true scholarship's defining goal of uncovering subtle and interesting truths through the pursuit of knowledge within the discipline of a recognized academic field. Critics from the Bar and the judiciary proffer the opposite complaint: that legal scholarship is not professional enough. The purpose of contemporary legal scholarship, according to professional critics, is obscure, and at least a good bit of it no longer seems primarily aimed at clarifying the law or suggesting pathways for the law to follow. It is of scant use to the practicing lawyer, and even less helpful for the sitting judge. Some judges brag that they don't bother to read it. For these critics, legal scholarship is too "academic." It is enamored with fads from other disciplines, and it is unmoored from any discipline or learning that is distinctively "legal." Law schools' legions of cost-conscious critics, with their eye on the bottom line, complain bitterly about legal scholarship's costs. Whatever might be its aim, tenured law professors with low course loads and high salaries produce far too much of it, driving up tuitions. It is a whole lot of costly nothing, these critics claim. The cost critique urges law professors to retreat from producing little-read and lowimpact scholarship toward teaching instead. The overall theme is that scholarly professors are eschewing the work of training students to be "practice ready" in favor of obscure research agendas and boutique seminars on overly precious topics that are of no use to practicing lawyers.
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