In the latest issue of Constitutional Commentary, Mark Tushnet offers a brief but interesting discussing of Professor Tribe’s decision, publicized last year in the Green Bag and available here, to discontinue work on the second volume of the third edition of his magisterial Constitutional Law treatise. (Alas, Tushnet’s piece isn’t available online, but should be on Westlaw et al. soon if it isn’t already.) Here’s a clip from the conclusion:
Professor Tribe’s position is that treatise-writing satisfying the requirements he identifies is possible in times when there is merely determinate indeterminacy, impossible in times of deep fissures. Mine is indeed that treatise-writing satisfying those requirements is never possible. What, then, to make of the performance of the first and second editions? From my point of view, those performances establish either (a) that the first and second editions did not satisfy the genre’s requirements as identified by Professor Tribe himself, or (b) that Professor Tribe is mistaken about the genre’s requirements. In light of the success of the first and second editions, my conclusion is that Professor Tribe shouldn’t have suspended his work on the third edition. [To which he adds, in a footnote, “At least not for the reasons he gave.”]
An interesting read, although, alas, that ship probably has sailed. Well worth reading. The title is Mark Tushnet, “Treatise Writing During Constitutional Moments,” 22 Const. Comment. 251 (2005). Passionately devoted readers (my favorite kind) may recall that I reached the same conclusion, for different and less-well-expressed but overlapping reasons, in this space a while back; you can find my post here. I suppose a petition drive is out of the question…
Posted by Paul Horwitz on July 14, 2006 at 07:14 PM