Saturday, February 24, 2007

Platonic Hierarchies of Legal Scholarship

A recent post on a law colleague's blog makes a new (and whimsical?) stab at a establishing -- this is really deja vu redux all over again! -- a new hierarchy of forms of legal scholarship. Although this new ranking of scholarly & intellectual worth is not as odious as a common ranking having some currency in some elevated circles of academia a generation ago -- today's new Platonic ordering does not consign treatises wholly to the dustbin --, this new attempt at a hierarchy is still very a very bad business -- simply for saying and assuming that normative legal scholarship has to be done in this or that way, treatises are necessarily done in some other specific fashion, and so on. To prevent history from repeating itself -- and, more important, to vent my ire (and my spleen) -- I simply must repeat the words I published 24 years ago (and wrote 25 years ago):
I am particularly grateful for [the] encouragement [of named individuals] since it has become fashionable in some quarters to think that the writing of treatises — not to speak of their revision — is a waste of intellectual capital. Their encouragement made me hold to the sensible view that books, just as much as articles in periodicals, can be a vehicle for expressing original thought and that nothing in heaven or on earth forces an author or reviser of a book to uphold every conceivable orthodoxy.
The most probable explanation for the relatively low status of treatises in the law school world during the last two generations is that many American law professors long ago became too lazy to read books. The monograph is much more digestible; a typical specimen can be read (and rejected) in 60 minutes or so.

In Canada, Liberty Cannot Be Taken Away without Due Process

Ian Austen, "Canadian Court Limits Detention in Terror Cases," NYTimes (Feb. 23, 2007):
“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,” Chief Justice Beverley McLachlin [of the Supreme Court of Canada] wrote in the ruling.


The decision reflected striking differences from the current legal climate in the United States.