Trends in Liberal Legal Scholarship

Thus the attention that constitutional theorists had given during the New Deal to the sweeping power of congressional economic regulation²⁶ shifted to the contemporary theorists' obsession with the question of the legitimacy of judicial review. Laurence Tribe's arguments for substantive due process enforcement of fundamental rights,²⁷ John Hart Ely's promotion of process- perfecting and representation-reinforcing review,²⁸ Michael Perry's reliance on conventional morality for judicial safeguarding of rights,²⁹ and Neil Komesar's preference for comparative institutional competence analysis³⁰ all represent a common enterprise. These liberal scholars strove to create a coherent theoretical basis for the expansive review power of the federal courts.

Similarly, liberal legal scholarship in a more doctrinal mode concentrated largely on individual rights issues and provided analyses to justify the federal judiciary's controversial progressive rulings. Examples are legion: Anthony Amsterdam's article on unconstitutional overbreadth;³¹ Charles Black's article on state action and equal protection law;³² Thomas Emerson's book and articles on first amendment theory;³³ Ruth Bader Ginsburg's article on gender discrimination;³⁴ Gerald Gunther's article on equal protection law;³⁵ Yale Kamisar's articles on police interrogation;³⁶ Frank Michelman's articles on takings and just compensation and on wealth discrimination;³⁷ Charles Reich's article on the 'new property;'³⁸ and Joseph Tussman's and Jacobus tenBroek's article on the origins of equal protection.³⁹ These are among the most widely read and influential works of liberal constitutional scholarship over the past forty years.⁴⁰

This sampling of the 'classics of legal scholarship'⁴¹ highlights the trends in contemporary liberal constitutional scholarship. These two prototypes--meta-theories of constitutional interpretation and issue-focused doctrinalism--have dominated liberal scholarship and, during the earlier period of liberal courts, endured criticism.⁴² If the Reagan appointments to the federal courts herald the beginning of a more conservative court era, what will happen to liberal legal scholarship? Is it realistic to believe that the established prototypes can continue to be politically effective? And, in the absence of judicial endorsement, can they maintain intellectual power?