Tuesday, July 14, 2009

Higher Academic Honors

As my time on this blog is coming to its inevitable and very depressing end, I try to keep my eye on the Big Picture. Yesterday, legal giant Richard Posner likewise advocated a farther-reaching, cross-disciplinary approach to law and society here. In his article, Posner laments the “academification”/specialization of legal research and writing, and specifically argues that the lack of academic focus on macro-economic issues by legal scholars is “inimical to research oriented to practical solutions to current legal [and economic] problems.” Posner follows with specific legal questions (e.g.: should bankruptcy judges rewrite mortgages?).

Posner’s specific legal questions get at the following themes: should rules of contract/bankruptcy law bend in times of economic crisis, and if so, should they bend through a legislative or a judicial process? Are there constitutional limitations to how far they can bend? From a policy perspective, is it wise for rules to bend/ be subject to bending during otherwise unstable times? Posner argues that “the impact of the [ ] resolution [of these questions] on the macroeconomy” would be extremely valuable, if not essential, to lasting economic (and legal) health.

To Posner’s points I would add that consideration of these questions by legal scholars could also shed light on some traditional debates about the very nature of the legal process. Anchoring Posner’s query of whether judges ought to have the power to rewrite mortgages (as opposed to the legislature passing a bill affecting certain mortgages) in a larger, traditional legal and political debate regarding the role of judges in society could breathe new life into the latter (bigger) context, with important practical consequences for how we select Supreme Court justices, select and rate judges, manage the legislative process, and interpret or change the U.S. Constitution. Ideas beget innovation. Because reinvigorating some older debates like the one about the role and power of the U.S. Supreme Court, or the one about the respective responsibilities of judges versus legislators, or the one about the propriety and sufficiency of methods for amending the U.S. Constitution, could indeed usher in meaningful legal and political innovations that could be substantially better equipped to grapple with the complex dynamic of the contemporary world than are our current (and unchallenged) traditional notions about such topics. For these reasons, I'm with Posner: the key to lasting legal and political health is in the minds and papers of academic legal researchers and writers, who should aspire towards bigger, higher, more complex and cross-disciplinary planes.

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1 comment:

  1. Thanks for blawging here, Olga!! You are the only one among us comfortable with the abstract principles of law, and I have really appreciated your consistent writing over the last month.

    Hope you had fun - Sls.


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