Constitutional Theory is Good for Nothing?

[Elizabeth Dale]

Don't these questions collapse a couple of issues and ignore some players in
the legal process?  It seems to me that this entire discussion has collapsed
method and theory. Sometimes a method may be a theory, but mostly those are
distinct. There are many people who proclaim they are originalists who use
different methods to approach their originalism. Miers, or any practioner,
may not have a coherent legal theory, but she should be able to explain what
she means when she claims, as I understood she had, that she has a method of
interpretation.  It's been a while since I practiced law, but my
recollection is that while my desire to represent my clients (and win) was
paramount, I had certain assumptions about the methods of interpretation and
argument that I would use to do so.  I'd be the first to accept the idea
that the writing in law reviews is often a bit, shall we say, esoteric and
theoretical. But I would also be doubtful of a Supreme Court (or federal
court) nominee who claimed to have no preferred methodology.
 
To turn to the second question -- are academics who publish law review
articles and books and so on -- wasting their time?, the answer is probably
yes, at some level. Or, more fairly, they are writing to impress the people
who grant them tenure and promote them and give them pay raises and hire
them away to top tier schools. Is that a shame? Sure. Is that a waste of
time? Not unless we want to return to an earlier, purer form of the life of
the mind. Like in the middle ages.  Monastaries were real good, after all,
at doing scholarship for the ages and the greater glory of god. But tenure
got established other ways.
 
That aside, to bewail the circumstance that judges don't read what we write
and think is to ignore the fact we do have other audiences. We write for one
another, which is a bit parochial of us, but perhaps still worth while. Any
time something I write influences a professor in some other state, that
means that my intellectual influence reaches beyond the steamy confines of
Gainesville and the limited pool of my students. If someone on this list
reads something I write, and teaches a class that incorporates that idea,
that means something, surely. Likewise, if the only audience I influence is
my students, I've influenced a collection of folks who, some of them, will
make the arguments that influence the courts. Even more to the point, every
time a student of mine choses to do a particular kind of law because of what
I teach (and that does happen, sometimes), I've just shaped the practice of
law another way, by encouraging people to care about certain issues or
approach certain problems as legal problems that should be resolved in
certain ways. And I may do that by coming up with my own ideas, or by
reading some highly theoretical work that I can then interpret and teach to
my students. 
 
Frankly, while I am hardly enthused about the Miers nomination (on the
contrary), I think this whole discussion is making a bit too much of judges.
The legal systemdepends on honest, intelligent, and independent judges. But
it also requires good and committed lawyers, and educated juries. If we
think the Supreme Court justices are the only audience we have, or the only
force of change in this country, we are conceding far more than I am
prepared to concede. 
 

Elizabeth Dale 

Associate Professor, US Legal History, Department of History, 
Affiliate Professor of Legal History, Levin College of Law 

University of Florida 
PO Box 17320 
Gainesville, Florida 32611 

edale at history.ufl.edu 
http://plaza.ufl.edu/edale 
352-393-0271 ex 262 

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Monday, October 10, 2005 10:47 AM
To: s-gerber at onu.edu; SLevinson at law.utexas.edu; tushnet at law.georgetown.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Constitutional Theory is Good for Nothing?


In a message dated 10/10/2005 10:02:04 AM Eastern Standard Time,
s-gerber at onu.edu writes:

I think the point is that much of what has emerged from the legal academy in
recent years/decades isn't worth much, at least at the practical level of
judging. 

        I see. But it isn't helpful, in my view, to claim--and I realize
Scott is attempting to report the claim not endorsing it--that "much of what
has emerged from the legal academy in recent years/decades isn't worth much,
at least at the practical level of judging" without naming names. Is Karst's
"The Freedom of Intimate Association" and other works cited by the Court
worth little? Are works by Ackerman, Amar, Balkin, Barnett, Berger, Dworkin,
Ely, Epstein, Fallon, Fried, Kramer, Levinson, Michelman, Sager, Seidman,
Shiffrin, Sunstein, Tushnet, and so forth not worth much, even "at the
practical level of judging"?  And what precisely does "the practical level
of  judging" mean? Does it mean, for example, some factor that a Justice
must affirm or deny in writing the opinion he or she is writing?  Or can
less direct factors--that might be discussed in works by any of the above
authors--also be important in informing the Justice's decision "at the
practical level of judging"?
 
        Different scholars have different thresholds of tolerance toward
theoretical discussions of constitutional law in contradistinction to more
direct examination of cases.  In my view, both inquiries are extremely
useful. Taking broad shots at either without an appropriate explanation
strikes me as unilluminating and misleading in the extreme.
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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