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Monday, June 14, 2021

Duly Noted

In a post on Balkinization, David Super writes about a forthcoming paper on making government more responsive. As a side note, he writes: "Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest."

It's not a sentence that will shock anyone. I don't want to give it more weight than the author intended--one can't read tone very easily on the Internet and distinguish between light humor, sarcasm, plain truth-telling, lament, and so on--or to focus on its author in particular. But, apart from thinking the sentence is accurate, I would be inclined to suggest that its very matter-of-factness is noteworthy. It is unusual in that it is a moment of plain-spoken truth-telling in a public space by someone who is both rightly well-regarded and indisputably well-credentialed in the progressive realm, rather than someone writing outside and against it, who might thus be disregarded or discounted even if he or she wrote essentially the same sentence.

Law reviews, like law schools, are an institution. As I have suggested here and there, it seems to me that the true crisis of our time, across many spaces, is institutional--is, specifically, a loss of interest in and allegiance to specific institutional roles and the valuable but--or valuable because--limited and specific purposes they serve. Institutions are not static and are and should be subject to change and reform, but debates about change ought to take place primarily from within some degree of submission to that institution: its purpose, function, role--and limits. The function of a law review is to serve scholarship. It may (to use a decidedly overblown bit of language) change the world, for better or worse; but that is strictly incidental. Serving scholarship, with a proper sense of institutional role and limitations, is the function; anything else is just a by-product. Law reviews that lose this core sense of purpose lose their reason for existing. Law schools that let it happen fail in their own function. And legal academics that actively encourage it, go along with it for reasons of placement and advancement or avoiding friction, or simply ignore it are also complicit. Our discipline is already undisciplined enough as it is. I agree with Stanley Fish that the job of academics is to do the job of academics. Surely that includes insisting, and ensuring, that their institutions are functioning properly and doing their jobs.     

Posted by Paul Horwitz on June 14, 2021 at 10:36 AM in Paul Horwitz | Permalink


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