Title: How to Analyze the American State: [Rejoinder]
Abstract: I am fortunate to have the opportunity to respond to these three challenging critiques.' I think it would be helpful to begin by describing more fully how the kind of constitutional theory presented in my article differs from much of contemporary constitutional theory, at least the theory that is done by academic lawyers. This will make it easier to show how my approach to constitutional theory differs from Tulis's, and will serve to answer some of his and Forbath's objections. Ronald Dworkin has argued persuasively that the kind of legal argument typically employed by lawyers and judges is not descriptive or evaluative, but a combination of both he calls interpretive.2 Legal arguments do not sharply distinguish between reports of the existing law and appeals to change the law. This sort of argument is common enough in constitutional law. Scholars often argue that the Constitution and Supreme Court precedents have created certain rights not yet recognized by the Court. While there may be good reasons to use interpretive arguments in the legal system, the effect of such arguments in the world of scholarship is deadly. The combination of description and evaluation inherent to such arguments produces two deleterious effects. On the one hand, scholars
Publication Year: 1991
Publication Date: 1991-01-01
Language: en
Type: article
Indexed In: ['crossref']
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