The Legal Conversation
If you have not read or heard it yet, I urge you to read or listen to (or, preferably, both read AND listen to) the address Justice Breyer delivered at Brookings/AEI on December 4. It is a lovely lecture, delivered with grace and precision, entitled “Economic Reasoning and Judicial Review.” Like all good lectures, it has something for everyone.
For me, the most striking thing about this talk was not the careful analysis of three cases in which economic reasoning would have helped but didn't happen (for various reasons) but Justice Breyer's characterization of his own dissenting opinions as elements of an evolving legal conversation. When I was an undergraduate, I was always thrilled by A. Bartlett Giamatti's invocations of the various meanings/important elements of a liberal arts education (his essays had something for everyone too — see A Free And Ordered Space and you'll understand). At about 57 minutes into his talk, Justice Breyer manages to tie the legal conversation and the liberal education together, and it's a great moment:
I do not mean to say that courts, in applying or developing copyright law or any other branch of law, directly follow public opinion. But I do mean to point out that the shaping of law in America is a highly democratic process. New law is less often decreed from on high by a court or a legislature than it “bubbles up” from below. Often the law-making process resembles a kind of conversation among many interested groups, including experts, specialists, commercial enterprises, labor unions, various interest groups, and ordinary citizens. That conversation takes place in journals, at seminars, in newspapers, at hearings, and in court proceedings. The decision of one institution is taken as a datum by another. It may be embodied in administrative rules, statutes, even constitutional interpretations; but none of these is permanent; all are subject to change or gradual evolution.
Michael Oakeshott, in describing liberal education, better explained what I have in mind. “The pursuit of learning,” he said, “is not a race in which the competitors jockey for the best place, it is not even an argument or a symposium; it is a conversation. . . . [E]ach study appear[s] as a voice whose tone is neither tyrannous nor plangent, but humble and conversable. . . . Its integration is not superimposed but springs from the quality of the voices which speak, and its value lies in the relics it leaves behind in the mind of those who participate.” Similarly, the development of legal methods and analysis is a collaborative, evolving process. The law is continuously renewed. To steal a philosophical boating metaphor, we renew it plank by plank while it floats upon the sea.
Take the time to listen to this talk if you can — it's well worth it, and the “open-textured” approach espoused by Justice Breyer is civility itself.