Friday, December 26, 2008
Over at Econlog, economist Bryan Caplan writes:
At risk of offending my many friends in the legal academy, I think that law is a shockingly phony discipline. Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds. Almost no one admits that many, if not most, laws are so vague that there is no "fact of the matter" about what they mean.
Once in a while, I should add, a law professor has told me this verbatim, and then gone back to arguing about the law. The philosopher in me insists, "If there's no such thing as unicorns, we can't argue about unicorns," but the Great Unicorn Debate never stops.
Bryan is an extremely insightful guy, so it is worthwhile considering his comment. My view is that he is half right. One needs to be careful about interpreting what lawyers mean when they speak about what the law is. If one is predicting how the courts, including the Supreme Court, will resolve a case, I think most lawyers and law professors are actually pretty accurate. And they are not too biased. The conservatives will not necessarily predict more conservative results than the liberals will.
But when law professors talk about how an issue ought to be decided -- that is, what the law really is -- then there may be wide differences, with political ideologies seeming to influence the result. But this should be no surprise. I am an originalist, and so what the Constitution really is to me is generally the original meaning. What the law really is to a living constitution liberal will be something different.
So, to conclude, law professors do not reach agreement about what the law should be (or really is) for obvious reasons, but do reach agreement about what the courts will do. Once one breaks it down like this, there is no surprise. The key is to get clear about the nature of the claim being made.
Update: Ilya Somin also addresses Bryan Caplan's post. I agree with much of Ilya's post, although he makes something of a different argument than I do.