27 October 2003

John Hart Ely, one of the giants of legal theory (and in particular of free speech, and indirectly defamation, at the constitutional level) died Saturday. Although I think his position does not go far enough in some respects, the most important aspect is that Democracy and Distrust firmly establishes a theory of judicial review that explicitly decouples judging from transient popular majorities. Some might argue that this is merely following in the footsteps of de Tocqueville. There is no shame, however, in making the curmudgeonly leaders of the legal profession—who in the 1970s were overwhelmingly old, upper-middle and upper class, white men—see that.

   Whether one agrees with Ely or not, one must at least acknowledge and engage with his theories on judicial review, in the same way as one must acknowledge and engage with Wayne LaFave on search and seizure, Harry Krause on family law, and Ron Rotunda and Geoffrey Hazard on legal ethics. Aside from the thoroughness of their scholarship, these influential legal scholars have another common virtue: writing that is as clear, concise, and direct as one can find in legal scholarship. That itself should be a hint to the legal profession.