Legal Commentary

I've just received my copy of Philip Hamburger's Law and Judicial Duty, and it's a tremendous work so far.  I just wanted to highlight an early passage:

Ideals often seem unrealistic and unsophisticated, and this is how academically inclined lawyers have long viewed the common law ideal of law and judicial duty.  Traditionally, lawyers of an academic bent tended to appreciate the learned law . . . for in this law they could enjoy wide-ranging intellectual inquiry, including an open acknowledgement of the incompleteness and injustice inherent in human law. . . . From this perspective, academically minded lawyers were apt to view the common law ideals as unrealistic, unjust, and even crude.  The contempt, however, was often mutual, and most common lawyers were almost dogmatically indifferent to the academic vision of reality and justice.  Common lawyers often quietly drew upon academic learning, but they persistently rejected the learned challenge to the common law ideals of law and judicial duty.  In fact, common law sensibilities have nearly always to some extent conflicted with academic sensibilities . . . . It will be seen that common lawyers typically had to deny or at least minimize the very "realities" that academics expected to be candidly acknowledged, for just as academically inclined men frequently accentuated what they considered the realities in order to reshape common law ideals, so common lawyers often needed to insist on their blunt ideals to protect against the alleged realities.

This seems to me to be an apt description of debates that continue to this day.  It encompasses not only the classic debate over Harry Edwards' description of the disjunction between the legal profession and the legal academy, but also even more recent debates about whether judges should cite law reviews and why they don't do so as much any more, and discussions over the citation tendencies of the Roberts Court.  Interesting!  I find it especially interesting for those of us who are interested in the relationship between law and virtue ethics, which may be one area in which the academically inclined and the common lawyers can intersect.  In any event, I look forward to reading the whole magisterial book.