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Earl Warren is dead. A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed. The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." The author’s present their views as a commentary to emphasize their preliminary character; they represent thier current assessment of where liberals stand and where they might redirect their energies. In Part I, they outline the reasons for believing that there is cause for alarm, though not resignation, in the liberal legal community. They also define the contours of what is meant by "liberal legal scholarship." In Part II, they discuss how conservatives have managed, with varying degrees of success, to frame the nature of public law discourse in the 1980s, and how liberals have reacted, and are likely to continue to react, to this phenomenon. The authors then describe what we believe to be the pitfalls of such "reactive" scholarship. In order to suggest some broad avenues for future liberal scholarship, they offer in Part III a historical account of the approaches taken by liberal scholars to meet the challenges of conservatism in law and politics during the period from 1876 to 1937. While the parallels between that era and the authors own are, of course, not exact, the lessons of that period do offer a wealth of experience and thought upon which liberals may draw. Finally, in Part IV, they examine three avenues that may be available, among others, for intellectually powerful and politically effective liberal legal scholarship. In doing so, the authors analyze inherent shortcomings of liberal legal theory, and suggest that future liberals reevaluate their commitment to current individual rights consciousness.


Excerpted in Constitutional Theory (Gerhardt & Rowe, editors, 1993)