The end of Tribe's treatise

Mark Tushnet

I've been hesitant to write about Laurence Tribe's decision to suspend work on his treatise, because of my notoriously intemperate review of the treatise's first version. (What can I say? I was young, it was a time of political tension of a particular sort -- different from today's, I refused to follow the advice of my older and wiser colleagues. So, to quote Justice Jackson, "Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' . . . But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.")

One (better) way to put my earlier concern is this: Was it possible to write a treatise when the first edition was published, on Tribe's premises about what a treatise is? To the extent that the premises require a certain degree of stability in the central themes of constitutional doctrine, I think it was possible to write a treatise at that time. As I've suggested elsewhere, the degree of uncertainty about the direction of constitutional law is now substantially higher -- as a practical matter, not as a jurisprudential one -- than it's been for a while.

But the inserted point referring to practicality is important. To put it somewhat polemically: There are times when there is practical stability but never times when there is jurisprudential stability. At those times what I will call "centrism" -- the identification of the practically stable themes in constitutional law -- presents itself as a non-political position. But, because there is never jurisprudential stability (the standard legal realist point taken either seriously or to an extreme), also at those times there's work to be done to demonstrate how (and that) centrism is indeed a political position. Read generously (which, I acknowledge, no one could reasonably have been expected to do), my review of the first edition was an effort to do that.

Now, a question/observation: I wonder to what extent even the first edition succeeded on its own terms. I haven't done a comprehensive survey, but my sense is that the treatise was not terribly successful in the legal academy. (For a soon-to-be-published book chapter I did a LEXIS search for citations to the treatise in Supreme Court opinions and found what I regarded as a surprisngly large number. An eyeball survey suggested that the citations were not on any analytically interesting points, but I could be wrong about that.) That is, my sense is that few people found that the various "models" Tribe offered were really helpful in inducing thought about unresolved problems -- in the way, I think, that at least parts of Corbin or Farnsworth on contracts were. One could use the treatise to gather citations to obscure cases, or to important cases on obscure issues, but I'm just not sure that it had any larger uses. But I'd be interested in finding out whether my sense is accurate or inaccurate.
Posted 12:43 PM by Mark Tushnet [link]