A Legal Marvel

The following article really speaks for itself. I used Tribe's book this past semester. Good stuff.
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Laurence Tribe's Big Surprise
Tony Mauro
Legal Times
05-27-2005


Ordinarily, the announcement by a law professor that he is not completing the second volume of the third edition of his book would not even merit a yawn.

But when that professor is Harvard Law School's liberal lion Laurence Tribe, the book is his famed treatise "American Constitutional Law" and he announces his decision in a letter to a Supreme Court justice, legal academics are left gasping in surprise and reaching deep for the appropriate metaphor.

"It's like Michael Jordan leaving basketball at the top of his game," says Ross Davies of George Mason University School of Law.

"This is like George Lucas announcing that he would not finish Episode III," adds Florida International University law professor Thomas Baker.

More esoterically, Yale Law School Professor Jack Balkin compares Tribe's announcement to Harvard Professor Henry Hart sitting down and refusing to deliver his third Holmes Lecture at Harvard Law School in 1963. "I can't think of a scholarly decision of similar symbolic importance," Balkin wrote on his Balkinization blog.

Tribe's treatise, first published in 1978, has been acclaimed as the leading -- or at least the most provocative -- modern synthesis of constitutional doctrine, assigned to countless law students and cited in more than 60 Supreme Court decisions. He revised it in 1988 and again in 1999 when the first volume of the third edition was published.

That most recent volume made headlines, surprisingly enough, because in it Tribe embraced a more individual rights view of the Second Amendment than he had before -- a shift that the National Rifle Association and other gun rights advocates seized on as vindication of their longtime assertions.

Now, with the nonpublication of the second volume, Tribe may make headlines again. Tribe's announcement came April 29 in a letter to Justice Stephen Breyer, who had asked him casually how he was coming on the second volume, which was scheduled to cover individual rights issues.

Tribe decided to write Breyer back. His "Dear Steve" letter and a 12-page elaboration will be published by Green Bag, Davies' law review at George Mason.

Tribe, 63, said neither personal factors nor ennui were at issue in his decision not to proceed. "It's not my health, which is fine," he wrote. "Or that I've lost interest in the questions the unpublished chapters would have discussed or the drive to pursue them doggedly."

Rather, Tribe said he had made his decision because, as he told Breyer, "conflict over basic constitutional premises is today at a fever pitch," moving rapidly in unpredictable directions. "No treatise, in my sense of that term, can be true to this moment in our constitutional history -- to its conflicts, innovations and complexities."

Tribe implies that a mere catalog or hornbook reciting recent decisions might be achievable, even if rapidly outdated. But a treatise seeking to explain constitutional themes and pull together seemingly disparate doctrines can't be done now, Tribe asserts. "I do not have, nor do I believe I have seen, a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution."

Comparing the current turmoil to the beginning of Franklin D. Roosevelt's presidency in 1932, Tribe said, "attempting to proclaim a new synthesis would bespeak utter hubris were it not so manifestly quixotic."

Tribe cited the current debate over the use of international law in Court decisionmaking, renewed discussion of the "Constitution in Exile" movement, and sharp divisions over Establishment Clause doctrine as examples of flux in constitutional law. He also took a swipe at the "tragic" handling of the Terry Schiavo case by President George W. Bush and others, and conveyed a general discontent with the combative conservatism that he sees dominating the legal landscape.

Tribe's statement marks "an important moment" in legal scholarship, Yale's Balkin says, because of Tribe's status as the leading symbol of liberal constitutional interpretation. "When Larry Tribe says that a paradigm shift may be on the way, it is worth sitting up and taking notice."

Georgetown University Law Center professor Mark Tushnet, former president of the Association of American Law Schools, also said Tribe's decision is noteworthy -- and understandable. "There is always fluctuation, a buzz about certain doctrines," says Tushnet. "But here he's saying, correctly I think, that the uncertainty is much greater. Constitutional law has been proceeding on a plateau or a mesa, but now we are moving toward the edge."

Vanderbilt University Law School Professor Suzanna Sherry says Tribe is "a little late in realizing there is no grand unifying theory." She adds that Tribe's treatise was "invaluable when it was published, but now there are many more resources available."

George Mason's Davies held out hope that Tribe, like Michael Jordan, might "come back and take another swing at it." He added, "I refer to it all the time. When you are reading his book, it's like reading a book, not an encyclopedia. There's a rhetorical flair." Baker at Florida International agrees: "I feel a sense of loss that such a gifted and capable scholar has thrown up his hands."

Tribe's publisher is more optimistic. "Foundation Press will wait," said publisher Steve Errick. "We'll write Larry next year about his plans and keep the light on." Errick added, "Other texts and other publishers might fill the gap for now, but Larry's book defines and leads the way."

Tribe's decision gives a boost to his two main competitors in the market for constitutional treatises: Erwin Chemerinsky's "Constitutional Law: Principles and Policies" and "Treatise on Constitutional Law: Substance and Procedure" by Ronald Rotunda and John Nowak.

Authors of both books had different reactions to Tribe's announcement.

Chemerinsky, now a law professor at Duke, once worked as a research assistant to Tribe for his first edition. "Larry Tribe's book is the most brilliant book on constitutional law that I have read. Everyone -- judges, lawyers, professors, students -- will be worse off for not having up-to-date editions of this landmark book. It's a huge loss."

Rotunda, a professor at George Mason, said, "I can sympathize. It's a lot of work to synthesize." But Rotunda did not agree that the current flux of the law made synthesis impossible. "Every time is a transition time. There are always new directions in the law. I'm not sure this time is all that different."