February 18, 2016
"The shelf life of the great American law review article is about five years, and of the great American treatise maybe 25; after that, they're just of historical interest."
Said Justice Scalia, stepping on lawprofs' dreams, knowing that Supreme Court opinions are so much more significant. But we'll see how long his opinions last. Me, I write blog posts. I know the shelf life is one day. (Ah, but days! We live in days....)
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Justice Scalia's Advice To Law Profs: Your Legacy Is Not Your Scholarship; 'What Endures Is What Happens In The Classroom'
"What endures is the human spirit, and if I have any legacy, anything that really endures, it is in the preserving and passing on of that spirit."
Unfortunately, what that means for many professors is indoctrination.
There is a freshness to legal Decisions that create case law that answers for exactly what courts need for the cases then coming along, But after 5 to 10 years that is over and a new wave comes along.
The great Jurists were the ones who wrote basic law to fact applications that stay the go to citation 100 years later. I think that requires a bluntness that men do well and women avoid doing.
Similarly, the average shelf life of a blog comment is about thirty seconds.
A great court decision must be a Decision. It cannot add so many narrowing conditions and on the other hands that it has no precedent effect. In other words you decide one side of the fence or the other is LAW. Sitting on the fence is cute but worthless.
The grass withers, the flower fades,
When the breath of the LORD blows upon it;
Surely the people[*] are grass.
The grass withers, the flower fades,
But the word of our God stands forever."
*Includes blog authors, law review/article writes, and all other manner and mean of the high and mighty.
@Bob: "Similarly, the average shelf life of a blog comment is about thirty seconds." Then again, many of the greatest things in life can be experienced in under a minute. And then again then again, who cares about shelf life when you are passing on that spirit?
Our entire lives are lived in the transition where the future becomes the past. It can't really be called time at all as it has no measurable duration, but it is where everything happens and is the only "time" we know.
Heeeeey! I remember the "Schadenfarve" comment made here low so many years ago!
That's lasted MUCH more than a day.
I think Robert Burns was wrong about the mouse living only in the present.
But in all fairness, I'm still trying to accommodate the idea that a boiling lobster feels pain but it doesn't suffer.
Bob Ellison said...
"Similarly, the average shelf life of a blog comment is about thirty seconds."
I hope not, otherwise we're all just flapping our gums here. I aim to persuade.
Days? Hours, ma'am.
Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more
The Wages of Crying Wolf was a huge law review article, for the pro-life movement, and for me personally. The title of my book, The Seen and the Unseen, I got from Althouse, who got it from the Nicene Creed. But vis-a-vis abortion, it was John Hart Ely who pointed out that we discount the unborn because we cannot see them. And this from a pro-choice guy! Pro-choice but outraged at the dishonesty of the opinion. He ripped it. And he ripped it so magnificently because the dissent failed to come to grips with how bad the opinion was. A beautiful law review article. I first read it in 1993, twenty years after Roe. It might be the only law review article I bother to cite in my book.
Ely was a liberal in the Hugo Black tradition. His book, Democracy and Distrust, is still a fun read. He's dead now, R.I.P. When I think about Ford nominating John Paul Stevens, the "moderate Republican," I want to throw a book at his head. The Supreme Court is filled with jurisprudential nihilists. (With the loss of Scalia, even more so). When you have somebody who respects the language, you should sit up and pay attention. And John Hart Ely was like that.
And then there is your day job. Who said, "There is nothing more evanescent than a good lecture?" (Someone probably gave me a lecture on how to punctuate the previous sentence. Didn't stick.)
Some scholarship endures by changing the way we think. E.g., Warren and Brandeis created the right to privacy. The common law right, not the constitutional one.
Some blog posts -- those announcing a vote for a neophyte, charlatan, socialist presidential candidate -- last much longer.
So too do the ones that expose the screaming knuckleheads who take over a state capital.
That made me check to see the most recent cite of my 1997 law review article. Cited last in 2008, so just about 20 years of relevance. And I bet the few who cited bothered to read it, not that it would've profited them), Law Review footnotes are often just checklists ("yes, I did read that one") or shout-outs.
Good Appellate case law builds walls to create a certainty to act on. If the walls become more of a problem than a solution, then the Legislature can write Law. Our problem is Legislatures that are bought off to do nothing. That invites the Court Justices to frame a remedy, even if it is to overrule their own Stare Decisis and revert to old law that was better. Unfortunately the ease with which that works and wins them esteem tempts them to morph into Philosopher Kings.
That is what Scalia said.
@Simon: "I hope not, otherwise we're all just flapping our gums here. I aim to persuade." Well, but some of us are already persuaded :). (I do appreciate your comments on legal matters, regardless of shelf life.).
By the way, I am surprised our hostess didn't go off on a literary tangent about "shelf life," which is an odd expression, certainly in this context. Quite a few items in law libraries I recall visiting seemed to have had a long "shelf life," but as far as I could tell that was the only life they'd known.
Said Justice Scalia, stepping on lawprofs' dreams, knowing that Supreme Court opinions are so much more significant.
All just dust in the wind when Sharia gets here.
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