Restraints of Reactive Scholarship
Admittedly, the value of scholarly dissent is not to be demeaned. There is and should be a place for such protest,58 which may help pave the way for the new analytical framework of which legal liberalism is now so sorely in need. In general, the problem is that reactive scholarship is not sufficient. In particular, reactive scholarship is likely to be: (1) conceptually unimaginative; (2) politically and legally ineffective; (3) incapable of critical self-evaluation; and (4) psychologically demoralizing.
Reactive scholarship is conceptually unimaginative because it is bound to the framework of past liberal legal doctrines and theories. Alternatively, liberal scholars should recognize the vital need to develop new constructs. For example, they should look for ways to protect fourth amendment privacy values without speaking only in the language of the exclusionary rule;59 or, they might try to secure privacy rights and other noneconomic civil liberties without resorting to the troublesome doctrine of 'substantive due process.'60
Moreover, reactive scholarship may be politically ineffective. Generally, when liberals argue for the extension of FDR/Warren Court rulings to unforeseen contexts, they are vulnerable to the conservative criticism that yesterday's formulas cannot be squared with today's realities. Take, for example, the principle established in Douglas v. California 61 that indigent criminal defendants are entitled to governmentally financed legal assistance in order to guarantee a chance of success at trial reasonably equivalent to that of a nonindigent defendant. Conventional liberal scholarship would view anything short of the full battery of procedural protections as violating the Douglas norm of equality. But uncritical adherence to Douglas ignores relevant political and economic restraints; the provision of the full battery of procedural protections may be beyond the institutional and economic capability of the government. Although meaningful assistance of counsel and related procedures are desirable, by adhering uncritically to former doctrine, liberal legal scholars continue to ignore relevant political and socioeconomic restraints.62
Implicit in these two shortcomings of reactive scholarship is a third, which merits independent emphasis. Reactive scholarship, by its nature, does not invite critical self-evaluation, if only because it is absorbed in defending existent approaches to social justice. Bound to the present, it cannot contemplate a future where the same objectives are obtained by different methods. But, unless they reexamine the weaknesses of liberal legal doctrine and theory, liberal scholars commit themselves to compounding their deficiencies.63
Finally, reactive scholarship is likely to be psychologically demoralizing. It tends to be interstitial, gradually making its points to fill the widening gaps created by formidable conservative rulings. As such precedents become more numerous, there is a corresponding, and demoralizing, sense of a loss of alarm. In such a world, reactive scholarship takes on a Sisyphean character.
