Mitch Berman has posted on SSRN an essay called “Alexander’s Genius,” in which he praises, and takes on, “one of the most creative, penetrating, and wide-ranging legal theorists working today.” (Nice!) The “principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution.”
I read the essay with interest, not only because I think Mitch and Larry are really interesting and smart, but also because I am attracted to the “Alexanderian” position, which Mitch criticizes, that legislative outputs should matter more then legislative inputs — at least when it comes to judicial design and use of constitutional doctrine. As I understand Mitch’s essay, he doesn’t rule out the possibility of this position being correct in some contexts. Instead, his point seems to be that, in some contexts, there are good (deontological and consequentialist) reasons to embrace purpose-based rules. Check it out!
Posted by Rick Garnett on June 6, 2013 at 09:56 AM
Comments
Dan — yes, you are right (I think) about Mitch’s characterization (which I assume is accurate!) of Larry’s views. I should have been more precise. Thx!
Posted by: Rick Garnett | Jun 7, 2013 10:22:07 AM
Rick, i had this piece on my to-read list also, and just knocked it off. I’m not sure if it’s correct to say that Alexander’s position is that outputs matter more than inputs; I read Mitch as saying Larry doesn’t much think purpose-driven inputs matter at all. Is that right?
Anyway, one of the interesting things about the piece is that it suggests Larry’s views are far more heterodox than I suspected–I would have thought that at least in some domains, Larry’s views are probably thought of as the dominant paradigm because, well, he’s offered *his* characteristically powerful and blunt arguments in support of them.
Posted by: Dan Markel | Jun 6, 2013 3:04:27 PM