Bainbridge Sums Up Balkin’s Brilliance

January 31st, 2012

Bainbridge, better than I could, sums up so well why Jack is Jack:

No, what makes one eligible to be a fancy professor of constitutional law at a fancy law school is how one gets to the right answer. Getting there the obvious way won’t cut it. Instead, you’ve got to have some really braniac way of getting there that no one else would have thought of. Using Icelandic blood feuds to explain class action suits or invoking Wittgenstein to explain the UCC, and so on. Ideally, it should be abstract, erudite, and so off the wall it never would have occurred to anybody who actually works in the field. (BTW, telling us what Rawls or Dworkin would think about your subject is now incredibly passe. Even student notes at bottom tier law schools can do that these days.)

In Balkin’s case, it’s the Thirteenth amendment and “the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave’s life.” All of which, to him, “suggests an interesting perspective on the First Amendment rights of for-profit corporations.”

To which my immediate reaction was, “WTF?” Followed by, “no, it doesn’t.”

But it’s precisely the sort of thing that passes as top notch legal scholarship these days. Blow that idea up into a 35,000 word article and you too could be a fancy professor of constitutional law at a fancy law school. Except that it never would have occurred to you in the first place. But don’t feel bad. It never would have occurred to me either.