Yummy Yummy Constitutions

I'm reading Pierre Schlag's new article, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803 (2009). It is, shall we say, strange. Quite out there, even for me, and I tolerate quite a bit of out there. This isn't an insult -- Prof. Schlag is quite deliberately intending to be out there, complete with "autonomous" footnotes that talk back to the author and refuse to do what they're told. For example, footnote 64 brags about including a pin cite, footnote 66 tells you to "See (or not) Symposium, Bush v. Gore, 68 U. Chi. L. Rev. 613 (2001)", and footnote 67 remarks "Also, do you like the small cap font above? I live for that." (I, too, have an intense adoration for small caps, and detest legal citation modifications which omit it. It pains me that blogger doesn't let me write in that font, and I'm forced to choose between lower-case or normal ALL CAPS!). I guess I shouldn't call it "footnote" anyway, because in footnote 30 it named itself "Daniel."

So that should give you a taste of the weirdness. The thesis of the article, as best as I can discern it, is that legal scholarship is "dead" (that part he's clear on) -- outside the treatise writers, it is a bunch of professors talking to themselves about imaginary things, listened to by nobody, with no effect and no real hope for an effect except that it transmits to the next generation of law students that this is what law is: a sort of self-important mediocrity existing in the middle of the bell curve between excellence and sloth (only trying desperately to hide the mediocrity, like an upper-class socialite treats her husband's alcoholism).

Eh. I'm probably willing to give this thesis more credence than 99% of the legal population, and I'm still saying: Eh. But this passage was golden:

I once read an article that purported to elaborate about what the Constitution should be. Now what struck me as odd was that the author really did want to free himself (and his reader) from any official pronouncements of what the Constitution is. This struck me as incredibly weird. What an odd thing to do. If the question “What should the Constitution be?” is not anchored in what the Constitution is (whatever that might be), then why not go for broke: I say let’s have a constitution that guarantees universal health care, tastes a lot like Ben & Jerry’s ice cream, and is laugh-out loud funny. You leave it to me? I say: Go big. (833)

The Law Journal published four responses to Prof. Schlag's article, which you can access from here: they're by Richard Posner, Robin West, Daniel Ortiz, and Richard H. Weisberg. Dan Filler comments as well at The Faculty Lounge, where he notes that the conservative (if iconoclastic) Posner "found himself in far more agreement with Schlag than he ever expected."

This doesn't surprise me all that much -- not only is Posner quite the iconoclast, but he's always been relatively close to the CLS positions that Schlag represents, just from a significantly more right-wing (and empirical friendly) stance. It's one of the reasons I find Posner so interesting, as a left-leaning fan of pragmatist and CLS/CRT style thought. I haven't read Posner's response yet, but I'll bet it's a good one.