Thursday, December 16, 2004
My latest article has hit the newstands: Affirmative Refraction: Grutter v. Bollinger Through the Lens of The Case of the Speluncean Explorers
, 21 Constitutional Commentary 63 (2004) (with Rafael Gely). Here is the abstract
This Article looks at the Supreme Court's recent decision on the use of race in law school admissions through the lens of the famous hypothetical about human cannibalism constructed by Lon Fuller (62 Harv. L. Rev. 616 (1949)). The hypothetical has challenged law students and legal scholars for over half a century, and in recent years scholars have issued dozens of new "opinions" to take into account contemporary legal theories (including symposia in 112 Harv. L. Rev. 1834 (1999) and 61 Geo. Wash. L. Rev. 1731 (1993)). This Article is the first to take the opposite approach and view a real-life legal issue through the eyes of the fictional Justices in The Case of the Speluncean Explorers.
We argue that the various opinions in Grutter find their intellectual forebears in the opinions in The Case of the Speluncean Explorers. For all of the heat and light generated by Grutter, the opinions merely mark another way station in the centuries-old debate among competing jurisprudential philosophies of the role of law and government. By examining the Grutter opinions in the context of this rich jurisprudential tradition, we hope to elevate much of the current debate about the case, in which labels like "liberal" and "conservative" are hurled about like epithets, toward a more sophisticated understanding of how the various approaches of the Justices embody alternative views of the proper judicial function in our democratic system.
The Article introduces a novel jurisprudential approach to judicial decision-making -- what we refer to as a "jurisprudence of humility." Building on the recent work of ideologically diverse scholars, we argue that a jurisprudence of humility recognizes that judges and lawyers hold no monopoly on wisdom and that, in certain situations, institutions other than courts may be better positioned to resolve a particular issue. This jurisprudence of humility construct enables us to draw some rather surprising connections between The Case of the Speluncean Explorers and Grutter and span the gulf in the legal literature between statutory construction and constitutional interpretation.