Legal Commentary

Dan asks whether anything could be said in defense of the student comment on the Philip Morris case, or whether anyone can at least provide a more even-handed critique of it than some of the pile-on comments over at the VC.  It must be Friday, because I've been thinking about this on and off all afternoon.  Let me say something sort of in its defense.  I'll set aside for now whether I agree or disagree with the author's substantive views and very evident politics; I'll also set aside the possibility that the comment invited a pile-on simply because it is of unusually poor quality.  In other words, let me offer the sort of ambivalent defense of the piece that leaves open the possibility that the comment is both substantively wrong and poorly written.  With friends like these. . . .

Like most constitutional law teachers, I view my job in the classroom substantially as being one of teaching students how to talk about constitutional law in a language that will be comprehensible, meaningful, and potentially persuasive to the relevant official interpretive community.  Whether I happen to be a textualist, an originalist, an advocate of living constitutionalism, etc. is not important; what matters is that I convey to my students a sense of how to employ and combine a variety of arguments that are at least legible and audible to the interpretive community.  The outcomes may change from term to term; but the language and forms of argument used to reach them are (fairly) consistent.  Students are thus best served not by memorizing particular case outcomes, but by learning the conventional modalities of constitutional argument, to use the term that's been lurking in the background.  Whether or not "we are all ___ now" as constitutional law scholars, in the classroom we are all Philip Bobbitt now. 

As valuable and liberating as this "language" can be, it also carries the risk of all language: that it will constrain, obscure, or deaden one's understanding of the world.  This is an age-old complaint about legal education in general, of course, and it certainly applies to constitutional law.  To slightly repurpose the famous words of Arthur Allen Leff, one can so absorb the conventional modalities of constitutional argument that one comes to neglect brute moral realities: that "napalming babies is bad," that "starving the poor is wicked," that "there is in the world such a thing as evil."  There is something to be said, I think, for rejecting the constraints of our language every now and then, or at least for learning its limits: for remembering just how small is the stage on which lawyers strut when compared to human misery, God, or, well, you name it. A barbaric yawp, or a cry of "wake up," is good for us every now and then, I think. 

We might think of the Philip Morris comment more charitably in that light.  The case comments in the HLR Supreme Court issue follow a lock-step convention that can come to numb one's senses and sensibilities.  ("[X] is an issue that has long divided the legal community.  Last Term, the Supreme Court finally considered this issue, and concluded that [Y].  Although the Court commendably said [Z], its failure to say [A] will have unfortunate consequences.  Here's what I would do once the President has the good sense to confirm me to the Court.")  There's something refreshing about seeing the Philip Morris comment in these surroundings; it's like setting loose Little Richard in the middle of a cotillion or bringing a mutt to a dog show -- or performing "Super Freak" at a child beauty pageant.

I hope that will serve as a more full-throated defense, Dan.  That having been said, I must add that my "defense" is, in this instance, a little hypothetical and half-hearted.  I also think the comment is poor on substance and style, politically jejune, tendentious on the facts (and law), equally predictable and conventional in its own way, and all the other criticisms that everyone at VC has already heaped upon it and that Dan is too polite to rehearse in his own post.  And it seems to me to be importantly misguided even if one agrees with its politics.  Even if one shares the author's view that the Constitution fundamentally serves to mask and/or advance "hierarchy and capitalism" and that the Court is insensitive to certain fundamental harms -- in fact, especially if one agrees with these propositions -- surely it is futile to obsess about the Constitution's rights provisions and how the Court interprets them, to believe that they are at the heart of the problem and will be at the heart of the solution, when one should be thinking about more fundamental structural problems and extrajudicial solutions.  So I give the comment partial points for its ill-mannered refusal to speak in the same language as its fellows in the same issue, but take them back for its failure to offer a substitute language that is any more successful and any less conventional in its own way.