It was interesting to listen to the intro to this episode especially re Dan's social media forays. I really honed in on the renewed discussion about "narrow limiting" vs "sounding the alarm" legal writing which you attributed to Kagan and Jackson respectively. Dan seemed to indicate he was much more fond of the former as he seemed much more wary of things he felt would lead to just abandoning law in general. This discussion seems almost old hat as you have both covered it so many times and, as you mentioned, Dan even just discussed it in the Jodi Kantor article.
What occurred to me was that you *both* seem to have quite a bit of reverence for Scalia's writing. For two decades he seemed to take the lead in "sounding the alarm" legal writing even though he was part of a 5 justice majority on most topics. It's hard to observe today's court and not note his oversized influence on justices trying to write like him, bring up references to him, claim his mantle etc. I guess what I'm saying is that it seems like there is ample evidence that regardless of if you are winning or losing, this type of approach weighs heavily on the next generation.
I agree with the Scalia example, and I don't mean to have taken a firm position against "sounding the alarm." (See also pp. 21-23 of Remedies for a Constitutional Crisis: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5543858). Of course, a lot depends on whether the situation in fact merits alarm and whether the alarm-sounder does it well.
That said, we have to be careful of selecting on the dependent variable. Justice Scalia was a non-standard writer, and also very influential. But there have been other Justices who were non-standard writers and less influential, or even anti-influential.
I completely agree! I guess I should have more carefully said "ample evidence ... *can* weigh[] heavily on the next generation". I think my broader points were (1) just that the latter approach doesn't necessarily spell the doom of the rule of law in general as some (not ya'll) are fond of claiming and (2) to raise the question of if the former approach actually accomplishes anything? (genuine question!)
It was interesting to listen to the intro to this episode especially re Dan's social media forays. I really honed in on the renewed discussion about "narrow limiting" vs "sounding the alarm" legal writing which you attributed to Kagan and Jackson respectively. Dan seemed to indicate he was much more fond of the former as he seemed much more wary of things he felt would lead to just abandoning law in general. This discussion seems almost old hat as you have both covered it so many times and, as you mentioned, Dan even just discussed it in the Jodi Kantor article.
What occurred to me was that you *both* seem to have quite a bit of reverence for Scalia's writing. For two decades he seemed to take the lead in "sounding the alarm" legal writing even though he was part of a 5 justice majority on most topics. It's hard to observe today's court and not note his oversized influence on justices trying to write like him, bring up references to him, claim his mantle etc. I guess what I'm saying is that it seems like there is ample evidence that regardless of if you are winning or losing, this type of approach weighs heavily on the next generation.
I agree with the Scalia example, and I don't mean to have taken a firm position against "sounding the alarm." (See also pp. 21-23 of Remedies for a Constitutional Crisis: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5543858). Of course, a lot depends on whether the situation in fact merits alarm and whether the alarm-sounder does it well.
That said, we have to be careful of selecting on the dependent variable. Justice Scalia was a non-standard writer, and also very influential. But there have been other Justices who were non-standard writers and less influential, or even anti-influential.
I completely agree! I guess I should have more carefully said "ample evidence ... *can* weigh[] heavily on the next generation". I think my broader points were (1) just that the latter approach doesn't necessarily spell the doom of the rule of law in general as some (not ya'll) are fond of claiming and (2) to raise the question of if the former approach actually accomplishes anything? (genuine question!)