Academic

Barton on Spitzer on Law Reviews

By Lawrence Solum

Benjamin Barton (University of Tennessee College of Law) has posted Saving Law Reviews from Political Scientists: A Defense of Lawyers, Law Professors, and Law Reviews on SSRN. Here is the abstract:

This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong on the merits, but is so bad that it is affirmatively dangerous and never should have been published. The efficacy of these arguments is crippled, however, by claim that the individual rights theory of the Second Amendment is fatally, obviously, and laughably wrong as a matter of constitutional theory, case law, and history. Unfortunately for Spitzer the Supreme Court held the exact opposite by a vote of 9-0 in District of Columbia v. Heller months after the publication of the book.

Further, Spitzer presents a remarkably weak case of causation between his alleged faulty scholarship and any resulting governmental actions. Even if Spitzer is correct that the scholarship he highlights is fatally wrong, it is quite a leap to say that this scholarship caused executive branch actions like George W. Bush's claim of expansive executive powers after 9/11 or George H.W. Bush's claim of an inherent line item veto.

Full post as published by Legal Theory Blog on February 05, 2009 (boomark / email).