Archive for the ‘Scholarship’ Category

Professor Robert Hayman’s Tribute to Bobby Lipkin

Written by webmaster on December 8th, 2010

5224617486_8be21a2736_m[Author: Robert Hayman] [see photos from event] This will be a short talk about one of Bobby’s “big ideas,” about pragmatism, which might be best described as revolutionary pragmatism.

Bobby’s interest in constitutional revolutions is well-documented, but the full corpus of his work documents a broader and deeper commitment to a revolutionary creed.  Each of his articles is in fact a mini-insurrection, a rebellion against one order or another.  As an author, Bobby is the James Dean of pragmatists; you got it, he rebels against it.  In his writings, no order is stable, no heuristic is safe, no paradigm is left unshifted.

Journey into one of his articles and see the world get re-made.   Old structures yield to new ones – of Bobby’s creation.  Old dichotomies yield to new ones – of Bobby’s creation.  Old terms yield to new ones – of Bobby’s creation.  So meet the new boss – he’s the not the same as the old boss, because the new boss is Bobby.   Bobby is, in his writing, the fabricator of new intellectual universes, the creator, and this is literally true, of new discourse.  The writing teems with, it overflows with, creativity.  But of course.  As Camus, the patron saint of pragmatists,  reminds us, what is creativity, after all, but rebellion.  James Dean got that too.

But Bobby’s rebellion is rebellion for a cause, and in that cause pragmatism is, fittingly, both means and ends.  Pragmatism is the vehicle for the perfection of American constitutional democracy; and pragmatism itself needs to be perfected, for its own sake – because it matters.

That’s another facet of Bobby’s work, the passion he shows for pragmatism. Read Bobby on pragmatism, and hear him revel in it, feel his joy in engaging it, it’s as if he cannot believe his impossibly good fortune in having discovered this remarkable philosophy that he can make his own.
And it suits him so well.  Inclusive enough, like Bobby, to embrace nearly every important jurisprudential movement of the past half century; rigorous enough, like Bobby, to be branded a philosophy, a brand it dismisses with studied disdain.  Committed, on the one hand, to critique and relentless skepticism; equally committed, on the other, to the power of prophecy, and to an enduring hope.   And it does matter; it is important.  The joy of Bobby’s work – and he is at times positively giddy – is matched by an earnestness; the stakes, he sees, are high.  Future generations will render their verdict but it should be no surprise if they determine that pragmatism’s influence on two generations of legal thinkers – in the academy, on the bench, in the White House – is rivaled in our history only by the New Deal era realists – the main difference being, of course, that we don’t have a New Deal.

At least, not yet.  Because the pragmatist’s story – Bobby’s story – is still unfolding. Who knows what tomorrow will bring, who knows which of Bobby’s fabricated universes will become our own.  We have witnessed, with Bobby, a President Obama; who is to say that we won’t witness a President Lipkin – Sara, as she’s known to her friends.

So here’s a bit of Bobby the revolutionary pragmatist, doing what pragmatists do – arguing with other pragmatists – because that’s they way they become better, it’s the way they learn how to build their new, better, universes.

The subject of Bobby’s work here is: an argument between two other pragmatists.  One of them, Richard Rorty, had counseled against the use of “foundationalist” language to make normative appeals; we cannot pretend, he insisted, to be possessors of first order moral insights.  The other, Lynn Baker, had taken Rorty to task; stripped of its moral dimensions, pragmatism, she insisted, lost its ability to persuade, and was of scant value to progressive movements, or to the cause of oppressed peoples.  It is true, Rorty conceded, that the language of progressive prophecy is sometimes littered with moral absolutes; but the prophets who use that language, he maintained, are the wrong kind of prophets.  Enter Bobby, stage left.  In a Tulane Law Review Article he titles “Pragmatism–The Unfinished Revolution,” Bobby writes this:
* * *
Rorty’s conception of the language of prophecy does not correspond to the language of actual prophets.  In short, the kinds of prophets we admire use very different descriptions than the ones that seem to follow from Rorty’s conception of antifoundationalist, prophetic language.  If doctrinaire pragmatism cannot accommodate the actual language of prophecy, then arguably it cannot be used for reflective social change even in the way Rorty endorses.  Rorty’s conception of good prophecy distorts moral language and moral psychology, the same language and psychology that have permitted Western intellectuals to seek to eradicate suffering and render society free and just.  Unlike doctrinaire pragmatism, reflective pragmatism can support and extend the language of prophecy as the only nonviolent means of reform and revolution.
Based on everything we know, reflective pragmatism permits universal moral truths.  Its antifoundationalism remains intact.  These truths are historically derived and do not pretend to represent any reality save our historical heritage.  The reflective pragmatist does not believe for a minute that these truths are anything more than deep, contingent generalizations.
For the reflective pragmatist, permitting universal judgments saves us from the straightjacket of doctrinaire pragmatism.  The language of universality permits us to say more of what we want to say about good and evil, our understanding of the moral past, and our utopian aspirations for the future.  So, despite the contingent imperfection associated with universal moral judgments, adopting a judicious use of such judgments is better than abandoning them entirely.  Reflective pragmatism, unlike its doctrinaire counterpart, contends that more pragmatic benefits accrue by permitting some universal judgments than by proscribing their use entirely.
Reflective pragmatism promises to continue the pragmatic revolution, a revolution that should always remain unfinished.  The unfinished pragmatic revolution indicates that pragmatism is a process that can exploit any other type of discourse when that discourse has pragmatic benefits.  As long as we recognize this, a pragmatist can adopt foundationalist, realist, objectivist, or universalist discourses shorn of their epistemological and metaphysical commitments when the pragmatic price is right.  Reflective pragmatism frees the pragmatist from both foundationalism and doctrinaire pragmatism.  Reflective pragmatism, in short, renders the pragmatist free from foundationalism as well as free to adopt foundationalist discourse, thereby expanding the pragmatic conversation.  Given reflective pragmatism’s superiority over doctrinaire pragmatism, nothing should prevent us from viewing the transition to reflective pragmatism as pragmatism’s next revolutionary moment.

* * *
See what he did there.   “Doctrinaire pragmatism,” “reflective pragmatism” – a new dichotomy; his dichotomy; his terms; his creation.  The paradox of the doctrinaire pragmatist – his discovery, if you will, or maybe his invention.  And for the pragmatist committed to progressive change – a new priority, and new discursive possibilities.  A new revolutionary moment.  All that in four paragraphs.  And we’ve barely scratched the surface.

When he was told of this event, Jack Balkin, editor of the balkanization blog and a Con Law teacher at Yale, passed along an email that closed with this thought: “Bobby was a lovely man, and will be deeply missed.”  Of course there’s no disputing any of that; we know it.  And for all the times that we imagine otherwise, for all the times I’ve still seen Bobby in my office doorway, smiling, greeting me with a “hey kiddo,” for all that, still the sense of loss is truly palpable, and still it hurts.

But maybe today points a way toward lessening the hurt, toward a way maybe that we miss Bobby less deeply.  Because Bobby left us more than memories, he left us his words.  And so from time to time we can pull this book from the shelf, and learn again from Bobby, and share with him his passions, witness–maybe even join in –his revolution, travel with him in his marvelous new worlds.  We’ll be better for it – not least because, we’re always better, when we’re with a friend.

Professor Erin Daly’s Presentation in Honor of Robert J. Lipkin

Written by admin on December 3rd, 2010

ErinDalyAuthor: Erin Daly [see photos from event]

I want to thank everyone for coming here today.
I think that when we first heard that Bob had died, we were completely bereft. We were completely stunned. Bob had been around here for so long that none of us could imagine this law school without him. We had a memorial service of sorts for him shortly after he died largely to help us get through what we were going through. It was I guess in some ways a good event, but it was really a terribly sad event. It was one of the few times that so many students had seen so many faculty cry. Not just a bit teary-eyed, but really, really cry.

One of the things that Bob’s friends did at that time was create a book in which people wrote some thoughts and feelings about Bob and what he had meant to them. Andy Strauss helped to organize this, and Connie Sweeney helped put it together. I’d like to present it now to Carolyn and Bob’s family.

I think when something that’s so tragic, and so sad like this happens, you try to say “is there any way we can try to make this better?” – “is there any way we can try to get something good out of this tragedy?” Jim May, rather quickly, rather intuitively understood that one of the greatest things that Bob had given us was his scholarship. And one of the great things about working with Bob was not only that we could read his scholarship, like everyone else, but that through knowing him, through talking to him, through just being in the same room with him, we could gain some appreciation for how he thought about his scholarship.

So Jim had the idea to use the next issue of the Law Review to commemorate Bob’s contribution to legal scholarship by bringing together in one volume some of Bob’s most important work.

As Jim and Bob Hayman and I sat down earlier this year to try to determine which of Bob’s many many articles and writings should be included and to try to write a foreword that would some how capture what Bob was trying to do in his writing – I’ll first say that we all had a very very hard time doing this – what I found, what I was struck by as I sat down to read his writing in the context of trying to understand who he was and what he was trying to do, I was so struck by the interconnectedness between who Bob was as a person – as a professional, which is the only capacity in which I knew him – and what he was trying to do in his scholarship.

Bob wrote scores of articles. He was just constantly, constantly writing, constantly had ideas that he wanted to set down on paper. But he was also – I think if any of us close our eyes for a moment and think about him – we think of him talking. We think of him engaging in debate. And that was the phrase that came to me when I sat down to think of him as a scholar. That he was always engaging in debate – in every sense of the phrase: he was always debating, and always engaged – really focused on the issue of the moment. And – when he was debating, he was always incredibly engaging. Both in his speech and his writing.

For him, I think, writing was a very active endeavor. Just as talking to people was very active.

Bobby’s debating style was unique. It was intensely personal – his ideas were not just abstract or academic arguments; they were convictions that he was testing out to see if he could believe in them, if he could adopt them as his own. But his was also a thoroughly inter-personal endeavor. Bobby was never enthralled with the ideas per se, he didn’t throw out his ideas simply to hear his own voice, but to prod others to react, to think, to respond, and to enhance his own understanding. It is for that reason that he was such a great mentor to me and to many others.

He didn’t necessarily want you to agree with him, but he wanted you to appreciate the value of his ideas – the value of the debate. “If I have persuaded you of [the importance of my idea],” he says in one article in this issue, “I have achieved my goal.”

Because the point was never to get you to agree, to win over adherents to his side. The point was to get you to think about it, more seriously, more rigorously – about their values and in particular, about his own particular academic passion, to think more rigorously about American constitutionalism and what it means, and what it could mean if it were taken more seriously.

To Bob, who loved debate, conversation, that inter-personal connection that you get through conversation, to Bob, even the constitution itself was a conversation – an ongoing, inter-personal or inter-subjective conversation. And debate about the constitution is what would make it better; continuing to think and talk about the constitution is what would make this a more perfect union.
So he wasn’t timid about making proposals not because he was sure he was right but because he was sure that the questions were worth asking.
I was struck as I looked through his body of work at how often he used question marks. I think that those of us who sat in faculty meetings might be surprised at that. If we were to associate him with any particular punctuation mark – and I admit that it’s perhaps an odd thing to do – but in faculty meetings, Bob was all exclamation point! He was always very emphatic, wasn’t he, in faculty meetings? In his writing, however, he rarely used exclamation points; rather, his writing was replete with question marks.

Legal scholars are known for being very emphatic: this is the way it ought to be! The court is wrong for all these reasons! But Bob’s writing is very different. It’s all questions: what do you think? Do you think it should be this way?

I remember many years ago when he was organizing the symposium on progressive constitutionalism. I remember talking to him about the title. He chose as his title: “is progressive constitutionalism dead?”  And I remember saying to him, in my polyanna way, why don’t you be more positive about it? Why don’t you call it: “progressive constitutionalism is alive!” and he said no, I want it to be in the form of a question. So finally I got it, and I said, so you ask the question and then over the course of the two days, you’ll get to an answer? And he said, no, I just want to ask the question. That’s what was important to him. Not to come up with the answer, not even to get the incredibly august group he had assembled should to come up with an answer, but to encourage everyone to think about the question.  I guess in that sense, he was a true Socratic.
And this is why I’m so admiring of the courage, the boldness of Bob’s scholarship. He was not afraid to ask questions. He was not afraid to attempt to answer them wherever the answers might lead him. He was not afraid to recognize that he might not have all the answers and in fact, perhaps one of Bob’s major contributions to legal scholarship is the notion that there is a difference between a community that is dedicated – that thinks it has all the answers to begin with and a community that is deliberative, one that seeks to find answers, one that has not pre-commited to a certain way of life or a certain set of values. And that is a paradigm –  the idea that communities, or that individuals within communities might be dedicated or might be deliberative – that is a paradigm that I have found extraordinarily influential in so many different ways.

The student editors of the law review wrote a very nice note at the beginning of this issue and it begins with an epigraph from Henry Brooks Adams. “A teacher affects eternity – he can never tell where his influence stops.”

And I think that is so true of Bob. Bob, I think, had no idea how much he influenced us and how much he touched us, not only through his warmth and his grace and his great sense of humor – and not even just through the force of his ideas, but through his manner of engaging with other people. He encouraged us to reconsider the ideas and values to which we were dedicated, to question the basis of that dedication so that we could continue to ask questions and be open to answers, and engage with an open mind in ongoing debate.
He understood that we had not just an opportunity or possibility of debating, but indeed, an obligation to engage in discussion with one another. Because it is the process of discussion and debate that brings us into closer community with one another. And this is perhaps an even more important idea that permeates his writing. The idea that through interpersonal discussion, we give meaning not only to our constitutional democracy, but to our own immediate community.

And what I want to leave you with today is an invitation to read the words on these posters, taken from Bob’s last article, because to me, these are the real essence of Bob’s work – his tireless commitment to give meaning to the various communities of which he was a member and where he will always be sorely missed.

Professor Jim May’s Remarks; A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin

Written by webmaster on December 1st, 2010

JimMayAuthor: Professor Jim May [see photos from event] Bobby’s constitutional theories were cogent, unconventional and unsettling. Bobby was unafraid of toppling conventional wisdom and subverting dominant paradigms about constitutional evolution, interpretation, supremacy and review.  I’m here to discuss three ideas Bobby invoked in four articles collected in this special issue of the Widener Law Review.

  1. Constitutional Law Evolves Not Through Constitutional Theory But Instead Through a Process of Constitutional Revolutions
  2. Constitutional Truth Does Not Exist; Results are Instead Explained by Indeterminacy
  3. While Judicial Review Nourishes Democracies, Judicial Supremacy is Antithetical to them.

His legal scholarship displays a courageous Cervantesarian devotion to tilting at doctrinaire constitutional theory. To Bobby, there is no unified field theory of constitutional interpretation. There is no such thing as constitutional truth. Judicial Supremacy should be replaced by judicial review with congressional override. At bottom, Bobby imagined constitutionalism as a beautiful shape-shifting constitutional democratic consciousness, a communitarian way to nourish a democracy and empower its people, forming a more perfect Union along the way.

Constitutional Law Evolves Through a Process of Constitutional Revolutions
Bobby sought to explain how constitutional legal theory evolves, not which theory is best. This is best exemplified by the first piece in this collection, The Anatomy of Constitutional Revolutions, (Nebraska – his alma mater — 1989). He explained:

[T]he perennial debate over the correct interpretive methodology is the search for which constitution is our Constitution. Among the candidates are: the living Constitution, the strictly constructed Constitution, the perfect Constitution, the strategic Constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, and the Constitution in exile.

To Bobby, none of these are correct and all are beside the point. To Bobby, constitutional legal theory evolves and adapts with what anthropologist and humanist Stephen Jay Gould might have called “punctuated equilibrium,” that is, long periods of stasis upset by abrupt, transformative change. Bobby called such changes in constitutional legal theory “constitutional revolutions” (as in “revolt,” not “revolve”), wherein legal change inconsonant with existing constitutional theory is impelled by compelling extrinsic factors, which explains results in “hard cases,” say Slaughterhouse, Plessy, Brown and Lawrence.

Bobby’s own theory about which constitutional theory is best is ultimately to reject the lot of them – which he said “obscures” real constitutional discussion, in favor of a nihilistic indeterminacy cabined by belief, bias, cognitive pragmatism and relativism, majoritarianism, chaos and cultural influences. Which brings me to his second theory about the role of truth in constitutional theory.
Results are Not Explained by Constitutional Truth, but instead by Constitutional Indeterminacy.
Bobby questioned the meaning of “truth” in constitutionalism. He was unwilling to accept the premise that there is or ought to be settled constitutional truths is well in view in the second piece of this collection, Indeterminacy, Justification and Truth in Constitutional Theory (Fordham, 1992). Bobby could be an epistemic fundamentalist, questioning the meaning of truth in and about constitutional interpretation: “Thus, the question of constitutional indeterminacy is ultimately a question of epistemic indeterminacy. Without knowing the univocal meaning of a constitutional proposition, even if such meaning exists, constitutional practitioners cannot be constrained or significantly guided by the law of the case.”

In Indeterminacy, Bobby argued that because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy, epistemic indeterminacy (sub nom. “indeterminacy”) is therefore more relevant to constitutional legal theory. He wrote:

Once we rid ourselves of the unfortunate dichotomy between metaphysical and epistemic indeterminacy, we realize that constitutional provisions have a univocal meaning if, and only if, qualified constitutional practitioners agree on what the provision means, and on the type of reasoning appropriate for resolving controversies pursuant to that meaning. This agreement explains why so-called “easy” cases are easy.

Bobbby rejected the notion that there exists “correct” constitutional theory, in favor of a sort of Zen temporal interpretivism that rejects the concept of constitutional “truth” altogether, concluding: “Constitutional theorists should jettison the notion of constitutional truth,” and

that constitutional theorists, judges, and practitioners should abandon truth in favor of justification. [T]ruth does not have the explanatory force it is typically thought to have. Consequently, whether constitutional statements are true is irrelevant to the process of constitutional litigation and adjudication.

Rather than “Truth,” indeterminacy is “an appropriate vehicle to transport constitutional theory into the twenty-first century,” and “ultimately captures the imagination of the age” and best equips society to address the greatest issues of the day, say slavery, abortion, gay marriage, consensual homosexual sex, executive authority, and national security.
To Bobby, the search for constitutional truth misses the point. The real adventure is in the journey of discovery not for the what, but for the who: who gets the final word on constitutional meaning? Congress? The President? The Supreme Court? States? To Bobby, the answer is “none of the above.”
Against Judicial Supremacy; In Favor of Judicial Review
Bobby concluded that while constitutional review is a healthy instrument in a republican democracy, constitutional supremacy escheats to The People. This is exemplified by the eighth and ninth articles in this collection, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, (Cardozo, 2006) and What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? (Widener, 2008)
To Bobby, a politically unaccountable Supreme Court should not have the last word – like Lewis Carroll’s Humpty Dumpty – on the meaning of the words and phrases contained in the U.S. Constitution. In a republican democracy – especially with constitutionally enshrined bicameral lawmaking topped by a democratically elected chief executive – constitutional interpretation should be wielded by those most accountable to the electorate. In Which Constitution, Bobby challenged the very notion of judicial supremacy in constitutional interpretation:

It is an indispensable feature of our constitutional system, according to conventional wisdom, that the federal judiciary is supreme in the exposition of the law of the Constitution. The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. [I reject] judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate’s incapacity to give their consent to justices and judicial decisions through input-accountability, process-accountability, and output accountability renders judicial supremacy anathema to self-government.

Bobby questioned judicial supremacy on constitutional textual and political accountability ground. He wrote:

it prevents citizens nevertheless from engaging in the joint enterprise of integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of sovereign authority over the society’s future.

Bobby also questioned judicial supremacy as applied in America as representative: “The Court, a mostly white, mostly male, and mostly middle-class body, seems conspicuously unrepresentative.”

Rather than courts, Bobby maintained that the electorate ought to be the ultimate arbiter of constitutional meaning. Bobby argued that Congress should have the role of “penultimate constitutional interpreter, one step short of the ultimate interpreter: the electorate.”

Bobby believed that “a congressional override of Supreme Court decisions as the solution to the problem of judicial supremacy has the advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it.”

Bobby held that congressional overrides are a constitutionally and historically entrenched American tradition that would serve as a democratic lever against the “the Court, thoroughly intoxicated with the power judicial supremacy grants them,” onerously running roughshod over a republican democracy.

Bobby made clear that his call against judicial supremacy was not a call to abandon judicial review. As he explained in What’s Wrong: “The value of judicial review lies in its utility in establishing a practice for reflection and deliberative conversation designed to translate the constitutional values of the past into the constitutional reality of the present.” In sum, Bobby believed that republican democracies thrive with judicial review, but not judicial supremacy. While judicial review is laudatory, he reasoned, dispositive constitutional disquisition should devolve not to those who cast judicial votes, but to those who cast elective ballots:

After deliberative debate, the final judgment concerning constitutional and political values should be the electorate’s. Any alternative system gives a government branch the power to check the other branches without an appropriate check on it. If there are to be unchecked checkers in American democracy, they should be—after extensive deliberative debate—the people themselves.

Now let’s hear from some other people, themselves.

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister’s Club.]

Harvard Professor Mark Tushnet Remembers Robert “Bobby” Lipkin, 2010

Written by webmaster on November 30th, 2010


“Good afternoon. I’m pleased to be able to participate through the wonders of modern technology in this celebration of the life and work of Bobby Lipkin.”

“I know Bobby – knew Bobby – through his work initially and then by meeting him at a number of conferences and other semi-social occasions.”

“I found his work on dedicated and deliberative cultures extremely valuable in thinking about issues of multiculturalism in the modern U.S. Constitution and elsewhere, and I always enjoyed reading what he was producing, but as you will know from your experience, Bobby was a lot more than a scholar. He was a wonderful person to be with. Again, meeting him at conferences and outside conferences, I was always impressed with his combination of intense seriousness, openness to discussion, and modesty about what he was bringing to the table – always more than he was willing to acknowledge. It’s a great combination that you don’t find in many scholars these days.”

“It is of course quite sad that we have to talk about Bobby’s work as a closed body of scholarship, but what he gave to us – and to you at the law school even more than the general scholarly community will remain with us as something to be emulated by all of us.”

“Again, I wish I could be with you today to celebrate Bobby, but I hope that this is a sufficient to indicate how highly I regarded him and how serious I think his loss is.”

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister’s Club.]

Professor Jim Chen Remembers Robert “Bobby” Lipkin, 2010

Written by webmaster on November 30th, 2010


“I appreciate this opportunity to pay tribute to Bobby Lipkin. I do wish that I could attend the ceremony in person. Then again, it is appropriate in a sense that I’m tipping my hat to Bobby Lipkin, cyber star, through an online video.”

“Toward the end of a career that was cut tragically short, Bobby had emerged as a leading figure in the online transmission of legal wisdom to audiences that only the Internet could reach. As a contributor to Ratio Juris and especially as the founder of his own blog, Essentially Contested America, Bobby delivered his views on constitutional law to a new and hungry audience.”

“Of course, before becoming a blogger Bobby had already established himself in the world of traditional legal scholarship, but Essentially Contested America freed him from the slow cycles of law review publishing. It allowed him to be more immediate and more relevant. He combined the immediacy of online media with the sophistication of a constitutional law scholar at the top of his craft.”

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister’s Club.]