FIDDLING WHILE ROME BURNS

Future functional, doctrinal and normative scholarship will depend on the liberal scholar who grasps the extent of the conservative overhaul of the federal judiciary and the inadequacies of current liberal theory. Moreover, the growing visibility of conservative legal scholars and their consonance with the federal judiciary and national politics cannot be disregarded.

Consider, for instance, the expanding prominence of the Chicago school of law and economics in the realms of federal constitutional and regulatory law.¹⁸⁹ Consider also the spector of an increasing responsiveness of the federal judiciary to conservative legal scholarship, with the lead taken by Reagan's recent appointments to the Supreme Court.¹⁹⁰ Consider, as well, the advent of generations of law students, who issue from the classrooms of conservative legal scholars to fill the chambers of conservative federal judges as their law clerks, and to proceed thereafter to the high ranks of federal government, to the offices of major law firms, and, to further the cycle, back to the classrooms of nationally recognized law schools.¹⁹¹ This is not to suggest the inevitability of a conservative capture of the legal profession and professoriat;¹⁹² however, it is critical to appreciate the strength of the new conservative presence in the legal community.

This appreciation should empower us. Liberal scholars should seek viable opportunities beyond, though not exclusive of, the federal courts to affect the directions of public law. They should not underestimate the potential of their scholarship to bolster reform movements. Neither should liberal scholars decline to formulate a new consciousness that surmounts the challenges to their normative agenda. The future of liberal legal scholarship is uncertain in the existing conservative court era. The first step to tomorrow's legal liberalism, however, is today's reality check.

Liberals may view the close of the Reagan era as an occasion for dancing in the streets. A new liberal presidency may alter the Reagan judicial legacy or a more moderate administration may not actively seek to further that legacy. But such expectations, heavily dependent on fortune as they are, misunderstand and discount the more lasting problems confronting liberal legalism, the problems discussed in Part IV. If in a post-Reagan era liberal legal scholars compound these problems or even remain oblivious to them, then the cause of enlightened and humane liberalism could suffer in ways never realized by the conservatism that assailed it in the 1980s.

Liberal legal scholars cannot afford to be Neronian; they should not fiddle while their Rome burns. If they do, they may only be 'excused by two facts: they do not know that they fiddle; and they do not know that Rome burns.'¹⁹³