Balkinization  

Saturday, May 28, 2005

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.

Comments:

I have to say, your review of Prof. Tribe's book is (a) the only law review article that I can remember from law school and (b) almost certainly the only article I read in law school that made me laugh out loud (there are some cases where the facts make you laugh, but that's different).
 

Mark, great post. Two reactions:

1. It hardly seems there's much for you to be apologetic about. Tribe suspending his treatise tends to confirm the truth of the harshest point you made about Tribe in your famous 1980 "Dia-Tribe" book review (Vol. 78, Michigan Law Review, page 694). On page 710 you suggested that Tribe's treatise was an example of the "corruption" of intellectual discourse, and that its lack of intellectual substance was explainable on the basis that Tribe wrote it not in the service of scholarly ideals, but out of ambition for public office.

Perhaps you did not know the back story when you wrote in 1980, but it appears you were dead on, as recent events have now seemed to confirm. In the early ‘80s a friend of mine who was quite familiar with the Carter Administration's 1976-77 transition process recounted to me with amusement Tribe's lobbying effort to be named Solicitor General. Tribe's bid was rebuffed, in part, with the observation he had never practiced law or even argued a single case as a consultant, and hence was not particularly qualified for the post. His response to being rejected was to do the treatise (apparently in an "I'll show them" mode), largely to help qualify himself for future opportunities, although of course in his preface Tribe professed timeless, transcendent purposes. The treatise did quickly lead to Tribe being hired to do cases, and much talk of a possible appointment to the Supreme Court or at least the Solicitor General position, but of course now Tribe's opportunity for any government position has disappeared. The main reason Tribe did the treatise -- his ambition for public office -- now being moot, it's not surprising he's cancelled the project, despite the timeless, transcendent purposes initially professed as motivating him to publish the treatise. Tribe's actions now tend to confirm you were right back in 1980: the treatise was all about Tribe's own ambition, and little more.

2. I think you're right the treatise has had little real impact within the legal academy, although it has been cited a lot by courts (mostly on routine points, as you state). Tribe's so-called seven "models" never made analytic sense and their influence has been essentially zero. It looks like Robert Nagel was right from the start that the "models" were just part of the fancy terminology used by Tribe to give his book a pseudo-scientific flair. My guess is the treatise has been cited mostly on routine points by academics as well, though I'm less sure of that. Probably a good percentage of academic cites were prompted by a desire to curry favor with Tribe, whose opinion on an up-and-coming scholar could easily advance or retard a career. Anyone who's received, or heard about, one of the "Larrygrams" Tribe has sent other scholars, even leading scholars, over the years suggesting they've plagiarized ideas supposedly developed in his treatise (saying things like, "I read your article with interest; it reminded me quite a bit of what I said on pp. ___ of my treatise; I'd be interested in your thoughts on that," etc., etc.) can attest to Tribe's keen desire to see his treatise cited even on points on which it may not deserve to be cited, and to get credit for points on which he may not deserve credit.

Of course, Tribe's irritating tendency to unfairly attack other scholars for taking credit for work he supposedly did first makes the recent reports about him plagiarizing from Henry Abraham and making extensive use of student ghostwriters all the more ironic.
 

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Vacations
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While Paris, England, or Germany offers excitement,
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Check Receipts and Statements
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If you were to check your grocery or store receipt,
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Laurence Henry Tribe (born October 10, 1941) is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor. He also serves as a consultant for the law firm of Akin Gump Strauss Hauer & Feld. sportsbook, Tribe is generally recognized as one of the foremost liberal constitutional law experts and Supreme Court practitioners in the United States. He is the author of American Constitutional Law (1978), the most frequently cited treatise in that field, and has argued before the U.S. Supreme Court 36 times. http://www.enterbet.com
 

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