Since we last posted a week ago, there has been much additional coverage of Professor Tribe's abandonment of his treatise, strongly confirming our initial sense of this as a major development relevant to this blog and worth substantial attention.
Although we are busy on other matters related to this blog and doubt we will devoting much more attention to Professor Tribe specifically in the next few weeks, we have prepared the below summary of these news and blog items, which we set forth in chronological order.
For completeness, we have included the early items mentioned in our initial post. We will do our best to list future news and blog items in updates to this post (at the bottom).
Leading Supreme Court journalist Lyle Denniston got the scoop on Professor Tribe's announcement, and has this post on SCOTUSblog (note also two comments by readers).
SCOTUSblog links to a low-quality PDF version of Professor Tribe's letters here.
"Fantasy Life" has a post generally supportive of Professor Tribe's announcement, relating to the incoherence of current constitutional law doctrine, entitled “Giving Up Hope”.
Lawyer and blogger extraordinaire Howard Bashman, on "How Appealing, has links to the Denniston commentary and the low-quality PDF file, here.
Law professor Orin Kerr has a very thoughtful commentary on "Volokh Conspiracy," entitled "Professor Tribe and the Constitutional Moment."
Law professor Jack Balkin has a very thoughtful commentary on his "Balkinization" blog, entitled "Tribe Says 'No Mas'." Note also three comments from readers, in particular this one: "The snarky explaination, of course, is when a man has been caught committing plagiarism, it's scarcely a suprise if he kills his latest opus before it faces critical examination. All face saving explainations aside . . ."
Roger Schlafly on "Roger's View," holding to his staunchly negative view of all things Tribe, opines here.
A recent law school grad and a professed fan of Professor Tribe, on "Expressio Unius," here, expresses difficulty understanding Tribe's explanation of why he is abandoning his treatise. Suspecting that Tribe simply decided he didn't want to do the work needed to complete the third edition of his treatise, this lawyer concludes: "I think Tribe is cheating here."
“Politics, Economics, and other stuff” has this short note.
Paul Horwitz, a law school professor, on "PrawfsBlawg," posts this lengthy dissent from Professor Tribe's anouncement, which we believe merits close attention. Although "sympathetic" to Tribe's perspective, Professor Horwitz does "not think the times make a treatise impossible," and he wonders whether Tribe believes it is impossible because he is "too close to the maelstrom he describes."
Professor Horwitz thinks "Tribe overstates the extent to which a treatise was unproblematic in 1978, 1988, and 2000, when he published his other iterations of the treatise."
Professor Horwitz thinks Tribe has overlooked how modern technologies allow adaptation to the transience of the enterprise of constitutional analysis.
Professor Horwitz "fear[s] that [Tribe] is experiencing a postmodern kind of anxiety of influence" about the inability of any treatise to remain magisterial during such fast-changing times.
Professor Horwitz hopes Professor Tribe can "be persuaded to make the second volume available, if only in an online form that recognize[s] the necessarily transient nature of the work."
The ever-reliable commentator on all things Tribe, the ACSBlog, has this short summary.
“The Public Trust” has this short post.
"Standards of Decency" has a minor comment, here.
On May 25 we made our initial post on Professor Tribe's announcement, here.
About two and a half hours after our post, which noted the danger of eyestrain due to the "very low-quality scanned copy" of Professor Tribe's letters posted on SCOTUSblog in PDF format, Tom Goldstein of SCOTUSblog announced here that a higher-quality PDF file was now available on the Green Bag website (although massive in size, as for some reason the PDF file was not created from the original Word file but was created by scanning the printout, so that the electronic versions of the letters posted and annotated on our blog remain the easiest way to access their content).
Note that a SCOTUSblog reader, Les Swanson, appended a comment to Mr. Goldstein's post noting that Professor Tribe's lengthy letter embraces "a kind of Hegelian idea about theorizing." Upon rereading Professor Tribe's letter, we realized Mr. Swanson is right: in his letter Professor Tribe sets forth a Hegelian dialetic, repeatedly using (in paragraphs 11, 14, 17, and 48) the three terms typically used in dialetical analysis: "thesis," "antithesis," and "synthesis." The repeated use of these terms makes fairly evident that much of the point of Professor Tribe's letter is to offer an Hegelian explanation of why it is supposedly impossible, currently, to write a constitutional law treatise. For anyone familiar with Hegel, Mr. Swanson's observation goes a long way toward explaining why Professor Tribe's lengthy letter is, at least in places, somewhat incomprehensible, perhaps even nonsensical. See, for example, here, here, here, here, here, here, here, here, and here.
Howard Bashman posts again, here, to mention the non-fuzzy PDF now posted on Green Bag, and to report: "Upon learning of Professor Tribe's decision last week, I decided to try my hand at drafting the second volume of that treatise, and I'm pleased to report that the effort is already quite close to completion." This comment generated substantial ridicule of Bashman and ancillary commentary on the "Greedy Clerks" discussion board, here, here, here, here, here, here, here, here, here, and here.
"BoleyBlogs," an excellent news feature of the library staff of the Lewis & Clark Law School, has a brief summary here.
Having a bit of fun with Professor Tribe, leading legal journalist Tony Mauro has an article in Legal Times, entitled "Laurence Tribe's Big Surprise." Somewhat differently than we depicted Justice Breyer's inquiry in our initial post (as politely but firmly pressing Professor Tribe on why he had not updated his treatise in 17 years, similar to how Harvard president Lawrence Summers pressed Cornel West, a University Professor, on his lack of recent serious scholarly work), Mauro's take is that Justice Breyer had only "asked him casually how he was coming on the second volume." This allows Mauro to draw a stark contrast between the inquiry and the response. In response to this casual inquiry, Mauro tartly notes, "Tribe decided to write Breyer back," in a "Dear Steve" letter spanning 12 single-spaced pages. In so doing, we assume Mauro intended to highlight the publicity stunt aspect of how Professor Tribe used a casual inquiry from Justice Breyer as a platform for his announcement that he was abandoning his treatise. If in fact Justice Breyer's inquiry was only a casual one, we question why Professor Tribe would feel free to use it as a launching pad for his lengthy letter, in effect using a sitting Supreme Court justice as part of a publicity stunt. We also wonder whether Justice Breyer was a willing participant in any such publicity stunt. Giving both him and Professor Tribe the benefit of the doubt, unlike Mauro we continue to read Justice Breyer's inquiry as a serious, not casual, one.
Mauro's article includes critical comments from two major scholars. First is law professor Suzanna Sherry (who coauthored a book to which we referred several times in our annotations), noting that Tribe "is 'a little late in realizing there is no grand unifying theory.'" Second is law professor Ronald Rotunda, the coauthor of a leading constitutional law treatise which is very much up to date, who disagreed with Tribe's view that it is impossible to do a treatise at this historical juncture. Professor Rotunda dryly observed that he "can sympathize" with Professor Tribe's decision to abandon his treatise, as "[i]t's a lot of work to synthesize" current developments and keep a treatise up to date. Reasonable readers may conclude that, between the lines, Professor Rotunda is calling Professor Tribe lazy.
On an entertaining new legal blog called "trusty getto," a Michigan lawyer, Cameron Getto, helps illustrate our point that Professor Tribe's creative use of a Hegelian dialectic to conclude that writing a constitutional law treatise currently is impossible helps explain why some aspects of his letter are incomprehensible, bordering on nonsense. Mr. Getto singles out this sentence by Professor Tribe (which occurs in paragraph 14, here), which uses two dialectical terms ("antithesis" and "synthesis"), as particularly incomprehensible:
At such potential turning points, and until more is known about the antithesis and about the dynamics of the battle ahead, attempting to proclaim a new synthesis would bespeak utter hubris were it not so manifestly quixotic.Mr. Getto comments: "Were I to spend the next 90 years trying to come up with that sentence, or one similarly obtuse, I am certain I could not."
"Law Librarian Blog" has a short summary of Professor Tribe's announcement, here.
In reaction to the comment of one law professor that Tribe's decision to abandon his treatise is "like Michael Jordan leaving basketball at the top of his game," Lawgirl left this perhaps apt comment on "The Legal Reader": "It's like Paris Hilton breaking up with Nicole Richie before the fourth season of The Simple Life."
Nick Rogers has a post provocatively titled: “Tribe: Can’t Stand Heat, Leaving Kitchen.”
"NESLReference," from the New England School of Law, has a short post, together with a sarcastic comment by a reader, here.
JD2B has this short item.
“Creep and Blink” has this short, approving, post.
The blog of one Federalist Society chapter has this generally favorable comment.
On "BuzWords," one liberal law professors counts Professor Tribe's announcement as the # 1 low of the week.
On "inter alia," a law student has this very favorable comment about Professor Tribe's treatise.
On "Balkinization,"law professor Mark Tushnet has this remarkably negative post, in which he questions whether Tribe's treatise has had any real importance, stating: "my sense is that the treatise was not terribly successful in the legal academy." Professor Tushnet notes that although it has been cited in "a surprisingly large number" of Supreme Court opinions, his sense is "that the citations were not on any analytically interesting points." "One could use the treatise to gather citations to obscure cases, or to important cases on obscure issues, but I'm just not sure that it had any larger uses."
In a comment on Professor Tushet's post, pseudonymous law professor "L.P. Anderson" agrees with Professor Tushet that Tribe's "treatise has had little real impact within the legal academy," and ventures that "[p]robably a good percentage of academic cites" to the treatise are a result of "Tribe's irritating tendency to unfairly attack other scholars for work he supposedly did first," when they don't cite his treatise. Anderson also sets forth a historical anecdote to buttress a statement made by Professor Tushnet in 1980 that Tribe wrote the treatise principally out of ambition for public office, so that his abandoning it now makes sense, as his opportunity for public office is now gone. Anderson's comment is reprinted on the "Disgruntled Law Prof" blog, here.
Professor Tribe’s hometown paper, The Boston Globe, had a bit of fun with Professor Tribe's announcement. It ran an essay by Joshua Glenn, entitled “No Time for Treatises,” describing why Professor Tribe is now “a little less busy.” Lest anyone miss that the essay was not being run to lionize Professor Tribe for his announcement of what he would not be doing, the Globe mentioned Professor Tribe had made this announcement in "a self-described 'entertaining journal of law'" which features "Supreme Court bobbleheads." And in a twist that even we view as rather nasty, to get across that it meant to ridicule Professor Tribe, the Globe ran the essay accompanied by this photo of him:
We certainly hope (for everyone’s sake) that this is the worst photo ever taken of Professor Tribe. Of course, Mr. Glenn's official Globe photo is nearly as bad:
Perhaps Mr. Glenn decided Professor Tribe should share his pain. We're sure glad Mr. Glenn lacks access to photos of us.
On "The Right Coast," law professor Michael Rappaport adds his name to the group of professors who do not view Professor Tribe's treatise as particularly significant. "Juris Pundit," in this comment, seconds Professor Rappaport's criticism of the romanticizing of Tribe's announcement.
In a comment about Professor Tribe, "Fumare" has this short post amusingly entitled, "Tribe flies when you're having fun." More harsly, in a comment to the post, Professor Tribe is described as just "a quitter."
“BarclayBlog,” of Syracuse University College of Law, has this brief post.