Legal Commentary

In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization:

A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court." He courteously sent me an email, providing an attached copy, with an expression of hope that he had not "mischaracterized" what I wrote. I thought that he had done so in a variety of ways, and at once wrote him back to say so, with a few paragraphs as merely a start to a longer reply.

After reflecting on the matter over the weekend, however, I decided against the idea. Frankly, it is too reminiscent of the endless exchanges Raoul Berger got into whenever anyone wrote something less than flattering of something he had offered in print. (It was all too much like pleadings at common law, i.e., complaint, answer, rejoinder, surrejoinder, rebuttal, surrebuttal. If nothing else, it could rightly be said of Raoul Berger that he was "indefatigable," i.e., Raoul let no critic go unanswered, determined always to have the last word, no matter what).

On reflection, it seems far better to thank Jack for drawing attention to my SSRN-posted essay, with the suggestion to the many readers of his blog just to read what I wrote, judge the matter for themselves, and leave it at that. To the extent they find it wanting, well, that's quite all right. Still, at the end of the day, it will be quite nice that it may thus achieve a wider audience than I had any reason to expect.

It's kind of a gracious reply--except for the none too subtle digs at Raoul Berger. I guess the thought is that if you're at Harvard or dead (or, better, both), the principles of generosity or charity don't much apply, even or especially to those who might simply be really committed to "getting the arguments right" (one of our mottos here, inspired by Walzer)...In any event, I would think most people who write a critique of another person's work would welcome (or if they have integrity and curiosity, should welcome) the feedback of the object of the critique. That said, I suspect that for some of these objects of critique, the task of replying to those who engage you seems tedious because it requires you to look back on your work when you might prefer to look forward, or perhaps forget you even wrote those words.