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Monday, December 04, 2023

Tushnet on Ephemeral and Enduring Constitutional Scholarship

I've written here before that I always find Mark Tushnet's posts on legal scholarship at Balkinization must-read stuff. I wish he posted more often. Happily, he has given us three interesting, related posts--here, here, and here. In them, he explores what makes for "ephemeral" and "enduring" legal scholarship in constitutional law. His overarching view is that "a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral." Scholarship that "develops the normative basis for specific outcomes in real constitutional controversies" is hampered by the felt need to "track, to some significant extent, contemporary or recent Supreme Court decisions," which "change in normatively relevant ways often enough to make work that satisfies [that] condition [ ] ephemeral." "Normative discussion of the structural Constitution," in which "authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem," is generally overly focused on some recent event, and generally involves a long-enough time frame that "by the time you might be able to get those changes made, things have changed so much that" that the work is again renedered ephemeral. Enduring works of constitutional scholarship, in his view, "identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are," in a way that is both less time-bound and more removed from immediate political controversies. Tushnet sums up as follows:

I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article[s] that endure let us think about the issues we care about no matter what side we take in contemporary controversies.

The posts are long and well worth reading. (I would say "long but well worth reading" but--come on. Look who's talking.) They are interesting, exploratory, impersonal--he is talking about a phenomenon, a "sociology of the legal academy"; he's not throwing stones or calling anyone's work crap--and tough-minded, written in the knowledge that his conclusions about ephemerality not only embrace some of his own work but, and perhaps more importantly, that of friends, allies, and colleagues.  

Seeing these posts makes me reflect yet again that I don't see as much serious, impersonal, tough-minded writing about scholarship in our field as I would like these days. By "about scholarship" I don't mean just meta-commentary about what we do, although I surely mean that too. But I don't even see as much simple substantive criticism of other scholars' work as I would expect--not good criticism, and certainly not good criticism of one's fellow travelers' work. I tend to blame political and cultural siloing, along with a heavy dose of therapeutic culture, which is not good for intellectual work. The relatively monocultural politics of the legal academy don't help. (There are differences in those politics seen up close, of course.) But that's not the whole of the story. Broadly speaking, I see a good deal of scholarship and public-facing, ie. social media, discourse in which any serious criticism is directed only, and merely, at one's adversaries, at people outside one's silo. And that's if one is lucky. Often enough, writing outside one's silo is simply disregarded, or it's dismissed in extravagant, shallow, and uninteresting terms. The better instances of criticism, when they appear, are not so much thorough as prosecutorial, with all the strengths and limitations that entails.

Within one's silo, there's an awful lot more praise--also extravagant, shallow, and uninteresting--than criticism, at least publicly. This seems to be a function of an academic culture in which "mutual support" is seen as an unalloyed good and apparently entails an absence of tough, impersonal criticism--again, at least publicly. I understand the roots of this, but it seems to me that not seriously criticizing one's friends or politically aligned fellow scholars is tantamount to not respecting them or taking them seriously as scholars and intellectuals. (Mark has been reading through his library and recently had tough words for my first book. I could have cried about it, I suppose--except that his actually engaging with the book is a lot better than some meaningless, enthusiastic blurb that signifies friendship rather than actual interest.) What I see on social media, when I visit it, is a great deal of "Fabulous new article by..." and "Excited to share X's terrific new piece," followed by a round of mutual compliments. Perhaps it was a terrible mistake for scholars to befriend each other on social media.

I suppose this is a form of mutual support. But law school and legal scholarship are most definitely markets, and what it mostly looks like to me is marketing, logrolling, and reciprocal flattery. Surely there is a substantial element of hustling in all this, because I can't imagine anyone enjoying it for its own sake or learning from it. At least with respect to the legal academy, the difference between "mutual support" and "life under late capitalism" seems to me to be rather hard to discern.  

Posted by Paul Horwitz on December 4, 2023 at 04:12 PM in Paul Horwitz | Permalink


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