Saturday, May 08, 2004

Two delightful pieces

Anyone with spare time should read David Currie's piece "The Most Insignificant Justice: A Preliminary Inquiry" at 50 U Chi L Rev 446 and then Frank Easterbrook's "The Most Insignificant Justice: Further Evidence" at 50 U Chi L Rev 481. A few choice quotes:

Eastbrook writes, "Some men achieve insignificance; others have insignificance thrust upon them." True enough. He follows it up with this footnote: "This is a Famous Quotation and therefore should be attributed to this article as follows: Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. CHI. L. REV. 481, 485 & n.12 (1983). "

HAH! And double points for Easterbrook excellent Use of Capitals!

Anyone acquainted with Professor Currie is aware of the low esteem in which he happens to hold most Justices. Easterbrook sums up that in Currie's world "at least seventy percent of the Justices are below average and a good fifty percent are in the bottom quintile?"

Double HAH!

In a statement striking for its accuracy and brilliancy, Currie writes that one way to approach the Most Insignificant Justice would be to examine how many stupid things the Justice says. How to measure? "[P]erhaps in a thorough study one should attempt to quantify it in terms of certain key words (e.g., "whereas," "party of the second part," "fairness," etc.) that all competent observers would agree are sure-fire indicators of an inferior mind."

A triple HAH would be insufficient!

Eastbrook ponders whether one can remain "insignificant" after one is awarded the title of Most Insignificant. He believes that being Most Insignificant is itself a significant accomplishment. He notes, however, that "Dean Gerhard Casper dissents from this analysis. He believes that the (in)significance of Justices is fixed by what the Justices themselves do, and that recognition of their (non)accomplishments cannot alter their relative position. The rest of my colleagues have not objected to the analysis in the text and therefore agree with me. Qui tacet consentire videtur. BROOM, A SELECTION OF LEGAL MAXIMS 85 (10th ed. 1939). (A translation of the maxim is on file with The University of Chicago Law Review. )"

I hardly knew which section to emphasize because it's all so delightfully witty.

A couple more.

First, Currie observes that "it is widely accepted among scholars -- though to my knowledge it has never been scientifically demonstrated -- that not all pages of words are of equal intellectual value."

Meanwhile Easterbrook wonders whether one can become insignificant if ones significant opinions or writings are only published posthumously. He notes that "Justice Brandeis had a whole volume of opinions published posthumously, A. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS (1957). (Query: How could the opinions be "unpublished" when they appeared in the very volume bearing that title?)"

Yes, how indeed?

Last Currie criticizes that "Clifford might as pertinently have begun by stating that 'dogs, in the constitutional sense, are dangerous mammalian quadrupeds that sully my lawn.'" If that quote confuses you, you'll just have to read the article.

No comments:

Google+ Badge

Blog Archive