Monday, November 27, 2006

Celebrating the 'brilliance' of Daniel Farber -- and the law

This year marks the 20th anniversary of what is still to my mind the greatest law review article I’ve ever read, Daniel Farber’s “The Case Against Brilliance” (70 Minn. L. Rev. 917 (1986)). Farber’s article was a critique of two then-recent law review articles, one by Dworkin and the other by one-time Michael Dorf co-author Laurence Tribe. Both articles, Farber argued, are examples of brilliant scholarship. For example, Dworkin’s article, as I remember, had demonstrated counter-intuitively how Rehnquist’s dissenting opinion in Garcia v. San Antonio Metro. Transit Auth. (469 U.S. 528 (1985)) (which argued in dissent that the 10th and 11th amendments immunized state governments from federal employment regulations) actually endorsed constitutional recognition of social welfare rights. The problem, according to Farber, is that such brilliant, counterintuitive arguments are simply incompatible with how the law, or at least the common law, really works. The law, unlike say economics, is meant to speak to the everyday person. A ‘brilliant’ legal argument – almost by definition – is one that would not be foreseen by the everyday person. For this reason, the attribute of ‘brilliance’ runs counter to what the law is really about.

To my reading, I have never seen an effective refutation to Farber’s argument. But I found my mind revisiting Farber’s wonderful idea recently in reading about radical constitutional satire in early 19th century England. One of the defining features of this satire was a (feigned) extreme naiveté on the part of the satirical observer, a naiveté that took the government and its vision of the English constitution at its word and then sought to reconcile that word with actual state of society around it. (Obligatory legal reference: this naiveté originally emerged as a way to protect writers against charges of seditious libel.) The genius in the satire was found in the absurdity of the reconciliation. Interestingly, this description of satire resonates very closely with Nicholas Luhmann’s and Gunther Teubner’s famous description of the law as an ‘autopoietic system’, by which they meant that the law is ‘normative closed’ – i.e., the law takes its own nornative pronouncements as given and uncontestable – and yet ‘cognitive open’ – i.e., it is still able to perceive empirical events of the society around it. Seen in this light, there appears a real resonance between what Dworkin was doing for American constitutionalism with his ‘brilliant’ reinterpretation Rehnquist’s dissent and what early 19th century radicals were doing for British constitutionalism with their satirical reinterpretations of Blackstone.

And I wonder if herein might lie at least one response to Farber’s article. I recall reading that Pablo Picasso once said that it had taken him many years to learn how to draw like a child. Similarly, one could argue that it’s taken the common law many years to learn how to appear to be so very not-brilliant. Is ‘brilliance’ in legal scholarship really just a satire of the common law’s brilliant anti-brilliance? If so, does it contribute to the common law what satire contributed to English constitutional development of the early 19th century? Is it perhaps an entertaining and somewhat paradoxical reminder of what the law is not? Is it a reminder not to take the law as seriously as it must take itself? Is it perhaps a reminder of how the law’s non-brilliance is often itself the product of a (perhaps unintentional) brilliance that is superior to our own?

And, of course, this was precisely the ‘brilliance’ of Farber’s own article. It exposed something important about what the law is not (i.e., ‘brilliant’); it reminded us not to take the brilliance of the law so seriously; and it suggested that the law was much more brilliant in its non-brilliance then we could ever be in our brilliance alone. All in a wonderfully entertaining fashion. It was satire in the purest – and very best, and most useful – sense. And this is probably why I regard it as the best law review article I’ve ever read.