Throwing bombs

Like Doug, I have been reflecting on the number of law professors involved in the Obama transition, and wondering what that will mean.  I don't think many of them will bring radical change, for good or bad, despite the fact that we might expect or even hope for that from those in the academy.

As I read legal scholarship these days, I see many pieces analyzing doctrines, tracing historical developments, seeking adjustments to parts of rules or laws, and suggesting new "perspectives," but very few that broadly attack a law or practice as fundamentally unjust.  We have many exceptional analysts and commentators, but few bomb-throwers, and those that exist often are outside the core of elite institutions.

It could be that we are fortunate enough to live in a nation without unjust laws, but I doubt that many of us would truly agree with that statement.  Given that most of us would agree that there are unjust laws, why are we not more focused on attacking them?  I suspect that at least two factors dampen the excitement for overarching reform within legal scholarship.

First, we do live in a society where the laws are the product of a democratic process.  Thus, if we identify a law as unjust, we are suggesting either a flaw in the process or that the majority of people in our nation are not only wrong about something, but at some level that they are fundamentally, morally wrong.  Understandably, we are reluctant to attack our democracy or our fellow citizens.

Second, to call a law unjust requires a position from which to determine justice as a moral position.  Legal philosophers discuss this in depth, but generally not in connection to a live issue, while the rest of us are often uncomfortable with the ideas of positivism or natural law, and certainly loath to connect a contemporary debate to either.

Still... if we don't throw the bombs, who will?

-- Mark Osler