The Case Against Brilliance

Via Prawfsblawg (which seems to have received its own tip from one of my professors, Samuel Bray) I learned about Daniel Farber's, Too Clever by Half: The Case Against Brilliance.  Prawfs quotes at length from the article, and I will do so as well from the portion of the article that I found funniest:

The case against brilliance is strongest in economics simply because economics takes the most positive view of human rationality. If a theory is brilliant, by definition everyone in history prior to its discovery was systematically wrong about something. The whole thrust of economic theory, however, is against the likelihood that everyone has been wrong.

Another field where brilliance should be counted as a disadvantage is constitutional law—an area in which brilliant scholarship has recently become rampant. Consider just two particularly brilliant recent theories. Dean John Hart Ely of Stanford Law School has addressed the question of how to interpret certain vague clauses in the Constitution, such as the privileges and immunities clause of the Fourteenth Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"). Allowing judges an open-ended license under these clauses would be undemocratic, but to ignore the clauses would also be improper. Hence, Ely argues, judges should apply the clauses to strengthen democracy by striking down legislation that in some way encumbers the democratic process. This is Ely's famous "representation- reinforcing" theory of judicial review, so-called because the courts reinforce representative democracy.

Professor Ronald Dworkin argues, by contrast, that the open-ended clauses of the Constitution are based on specific conceptions of equality, freedom, and justice. In interpreting these clauses, however, judges should rely not on the particular conceptions of the framers but rather on the deeper philosophical concepts that lie behind these conceptions. Thus, in exercising judicial review, judges should not be concerned with how the framers of the equal protection clause construed the concept of equality, or even with how the average citizen today understands equality, but rather with the true meaning of equality. Dworkin's theory, like Ely's, takes the constitutional text as the starting point, but then adds a brilliant gloss of its own.

Unfortunately, these theories share a flaw, a flaw endemic to brilliant legal theories. The Fourteenth Amendment was not written by Ronald Dworkin or John Hart Ely. Its primary drafter was a man named John Bingham. Bingham had a certain flair for sermonizing. But, based on his public speeches, it seems doubtful that he was as intelligent as the average law professor, let alone Ronald Dworkin and John Hart Ely. It is hard to see how he could have had in mind a notion so ingenious that no one thought of it until Ronald Dworkin and John Hart Ely came along.

You should read the whole thing for yourself.  Also, via Orin Kerr, here is a link to a different version of the essay that was published in the Minnesota Law Review back in 1986.