Sunday, May 09, 2010

Elana Kagan's Scholarship

Mark Tushnet

I'm glad the my friend Marvin Ammori has started a conversation about the merits of Elana Kagan's scholarship, rather than simply commenting on its quantity. I disagree with his interpretation of the article he discusses, and want to add something about her (in my view) quite spectacularly brilliant article on "Presidential Administration." (Disclosure: Kagan was Dean at Harvard when I joined the faculty; I assume that she played an important part in that decision; and she treated me quite well while we were both on the faculty.)

The First Amendment article Marvin analyzes has a form common to law review articles. It takes as a given one prominent decision and asks what its implications are for other problems. Sometimes those other problems will already have arisen, and the article identifies a conflict between the first and the later decision. What is to be done? There are three possibilities: The second case, being inconsistent with the first, should be overruled; the two cases can be reconciled in some way the Court failed to identify; or -- importantly -- the first case, being inconsistent with the first, should be overruled. Many academics think it's reasonable to take the case that everyone treats as the landmark as the fixed point, which is what Kagan's article does. But, as Marvin notes, there's nothing in Kagan's article to tell us whether -- as a judge -- she'd pursue the first rather than the third course. As he also notes, in observing that Kagan argued Citizens United, role matters -- and understanding an academic's role (or more precisely, how specific academics conceive of their role) is essential in using scholarship as a way to make predictive judgments about what she might do in a different role.

Now, to "Presidential Administration." I think this is an incredibly smart and insightful piece of work, and I've relied on it heavily in my own scholarship (see this article, for example). Kagan identified and gave a label to an important development in the contemporary administrative state, the absorption into the White House of actions formerly -- and formally -- attributed to administrative agencies (both executive branch agencies such as the Food and Drug Administration and "independent" agencies such as the Federal Communications Commission).

Simply seeing this phenomenon for what it was, was an important contribution to our understanding of modern government. But, in my view, there's much more to the article than that. As I see it, the development Kagan identified is an important part of a larger transformation of the structure of modern government, and fits into narratives about what political scientists call "American political development." Kagan points out, for example, that presidential administration is in part a response to political difficulties associated with divided government (and today, divided government seems to mean a Senate in which the President's party controls fewer than sixty seats). I've commented elsewhere that the proliferation of White House czars is consistent with Kagan's ideas about presidential administration. What her work does, that is, is give us a way of thinking about how contemporary government is shaped and reshaped by fundamental features of the political landscape. (I discuss some aspects of Kagan's work in my book, The New Constitutional Order, published in 2003.)

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