an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In reaction to Mark's post, here's what I find striking when I consume scholarship from fields other than law, particularly political science and history. Roughly speaking, what I find valuable in work by political scientists (when I find the work valuable) is that the very first thing they think about is power. In contrast, when I learn from works by legal scholars, it's because the very first thing they think about is law. And, again roughly speaking, what I find valuable in work by historians is their sensitivity to and presentation of complexity. In contrast, legal academics seem to me interested, in the first instance, in reducing complexity even they reintroduce it as the analysis proceeds. (The reason for the impulse to reduce complexity, I think, is the the more complex the analysis, the harder it is to describe the analysis a "legal" rather than (purely) political or (purely) moral.)
And, from my perspective, work by scholars in other disciplines is decreasingly valuable as their attempt to "do law" increases. To put it more than a bit snidely, the very best case-crunching by political scientists might possibly break into the top-twenty list of case-crunching by legal scholars. I suspect that the situation is the same in the other disciplines -- work by legal academics is decreasingly valuable as their attempt to "do" the other discipline increases. This is one way to take Brian Leiter's criticisms of legal philosophy done legal academics. And yet, sometimes I have a sense that that and like criticisms are misplaced -- to use a philosopher's term, commit a category mistake -- because the legal academics aren't really trying to "do" the other discipline, but to do law in a somewhat untraditional way. And, finally, that observation probably ought to make more more charitable than I am to what appear to me to be efforts to "do law' by scholars from other disciplines. Posted
by Mark Tushnet [link]
How do you feel about the Supreme Court's efforts to "do" history? And what does that imply for any form of originalist interpretation?
I am a bit confused by this. When Political Scientists "do law", it's not very valuable, but when law people "do political science" it is in the name of doing "law unconventionally", and thus, not as egregious?
If this is the argument, which perhaps I have misunderstood, it sounds like, if you'll forgive me, a bit of paradigmatic "home town" bias. For one thing, this seems to presume that studying "the law" and studying "power" can be meaningfully separated to a degree that can justify this claim. Second, it seems to me that anyone in any of the social sciences are "simply doing X (X being whatever discipline they happen to belong to) in an unconvetnional way" since history, sociology, political science, law, criminology, and the like are all basically taking cuts at trying to get leverage on understanding the realities that flow from, to quote Hannah Arendt, "the fact that men, and not man live on this earth." To the extent that this fact is driving the motivation behind researching the answers to any of the wide variety of questions in any of these disciplines, we will all run into areas of overlap because we all come back home to the same fundamental problems and questions. All of these disciplines study and implicitly derive claims of being interesting due to their implicaitons for understanding "human connections", which of course was called in the Latin, "lex", from which the term law derives.
I am a Maryland Political Science Graduate Student. My fiancee is a Vanderbilt Law 2L. It was my fiancee who said something that sparked the idea for my dissertation, and when she had to write a short resonse piece on "Dred Scott v. Sanford" for her ConLawII course, it was I, and not she, who was reading "Dred Scott and the Problem of Constitutional Evil". Obviously, this could simply be coincidental, but our exchange of ideas is radically aided by the fact that we consider ourselves to be largely trying to understand the same things, rather than different things.
Finally, if we are to put people in different sides of the aisle, what do we call Dr. Graber's latest book? Is it a law book or a political science book? What makes Stephen Elkin's "Reconstructing the Commercial Republic" a political science book calling for reforms in our constitional order and Jack Balkin's new book a law book, which, though I have not yet read it, seems to call for reforms in our constitutional order?