Title

Debate

Document Type

Article

Publication Title

Cornell Law Review

Publication Date

2017

Page Number

1649

Disciplines

Law

Abstract

In 1890, Louis Brandeis wrote The Right to Privacy. Within a matter of years, the courts began adopting his theory, creating a newly articulated legal right. This article likely represented the high-water mark of legal academia in terms of real world impact. In recent years, the academy has lost much of its relevance. Chief Justice Roberts ridiculed academic work, suggesting that legal scholarship has become esoteric and irrelevant. This should not be the case. The quality of legal scholars is higher than it has ever been—young scholars now often enter the academy with doctoral degrees in related fields. Likewise, technology has placed a world of information at our fingertips. Scholars can write pieces that react to quickly changing events at an unprecedented speed. Yet the speed of publication in flagship print editions has lagged behind the speech of scholarship itself. By the time a piece of writing is published, almost a year has passed since it was submitted. And if the piece elicits a response, it would come out a year after that. At this point, two years have gone by since submission and in the fast paced world of legal scholarship, a final riposte will often not be relevant. The end result is, that aside from the occasional citation, most scholarly debates are obsolete or irrelevant by the time they appear in print. This should be unacceptable given that our profession is, at its core, adversarial. Adversity can help make legal scholarship more relevant. Although a legal practitioner can easily research the case law, she cannot as easily identify the points of interpretive conflict. Now more than ever, it is essential for academic works to present the competing views of a theory in a package that identifies where the real points of reasonable disagreement lie. Yet this is a difficult task for any single scholar. All minds are subject to bias, even more so when the subject has already stoked scholarly passions. And even in the cases where a scholar can fairly present disagreements, there is simply no way for a practitioner to identify an exceptional piece from the volumes of scholarship without significant expertise in the field. Unfortunately, this means that despite the skill and best intentions of legal scholars, the solution to this problem is largely out of their hands. Further, the students that comprise the editorial boards of America’s legal journals do not have the knowledge to consistently ensure that an article includes voices of reasonable opposition. This “debate” is an attempt to remedy the problem. Instead of imposing our opinions on the academy, the editors of the Cornell Law Review have decided to facilitate what is essentially a public peer review process of an article published in a previous volume of our journal. In Volume 101, we published an article by Professors Christopher Serkin and Nelson Tebbe entitled Is the Constitution Special? This article argued that, contrary to common belief, it is difficult to justify lawyers’ distinct interpretive approach to the Constitution, as opposed to statutory or common law. This was a novel and controversial claim that begged to be subjected to heightened scrutiny. After an extensive selection process, the senior editorial board invited Professors Richard Primus and Kevin Stack to act as critics of the Serkin and Tebbe piece, and they graciously accepted. Over the course of the past year, these four scholars have engaged in a written exchange debating Serkin and Tebbe’s argument. It begins with Primus and Stack’s critiques of the article and then carries on for a total of six critiques and responses (two from each critic and two from the authors). While the result of this experiment will be determined by its readership, we believe that it has been a success. As will be seen in the pages that follow, the initial theory has been clarified and elevated while the facets of disagreement have been cleaved for both future scholars and practitioners.

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