Legal Commentary

I was quite surprised to see, via Larry Solum earlier this month, that Michel Foucault ranks as one of the most-cited authors in 2007 not only in the humanities -- taking first place, with 2,521 citations -- but also as one of the most-cited philosophers in legal scholarship (based on Solum's survey of the Westlaw JLR database). Among law review articles in that database, out of a list of about 22 of the most important philosophers and theorists in the humanities, Foucault takes 3rd place, with 166 citations, behind only John Rawls (409) and Immanuel Kant (224).

Though I don't yet have anything in print citing Foucault, I have been thinking about his work a lot and using it in some of my current drafts. Much of it has obvious application to law, since a large preoccupation of Foucault's was power in all its manifestations, and the discourses and institutions through which power is exercised. Yet in my own field (constitutional law), I rarely see Foucault cited or discussed.

Much of my scholarly work is at the intersection of health law and constitutional law. Some of Foucault's more recent work -- in particular his concept of "biopolitics" -- seems to be gaining some traction in that area. No doubt this is in part because of the relatively recent appearance, in English (beginning in 2003 and continuing for several more years), of Foucault's lectures at the College de France. In those lectures, which he presented from 1970 until his death in 1984, Foucault meditates on some issues of overwhelming concern to many of us in the legal field today - namely, the ways in which state power is exercised in the face of military, epidemiological, and other uniquely modern threats.

There is reason to think, then, that Foucault's influence in our field will only continue to grow.