CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 6, 2022

Bernick on Seidman on the Warren Court on Criminal Procedure

Evan D. Bernick (Northern Illinois University - College of Law) has posted 'Critical Legal Studies, Again?' 'Again and Again!' on SSRN. Here is the abstract:
In his 2012 book On Constitutional Disobedience, Louis Michael Seidman asked whether anyone should “feel obligated to obey [a] deeply flawed, eighteenth century document” and answered (emphatically) “No.” Now he has published From Parchment to Dust: The Case for Constitutional Skepticism. At first blush, skepticism seems rather different and less radical than disobedience. But Seidman's estimation of the U.S. Constitution, U.S. constitutional law, and the institution most closely associated with both - the Supreme Court of the United States - has not improved. His latest work calls for a bloodless ideological revolution in favor of an informal, small-d-democratic skeptical constitution that is “nowhere codified”; the content of which is “subject to reasonable disagreement”; and which is “implemented and amended daily.”

In other words, Seidman is an unreconstructed critic of the Constitution, in both the ordinary and legal-academic sense. A leading participant in the critical legal studies movement (“CLS”), Seidman applies to constitutional decisionmaking characteristically critical insights about the indeterminacy of law, the political nature of legal decisionmaking, and the disutility of rights. This Essay critiques his critique.

From Parchment to Dust is terrific stuff. But it would have benefited from more extended engagement with longstanding criticisms of CLS for neglecting race and undervaluing rights; more considered attention to constitutional law’s current place in a particular political-economic order; and more engagement with emergent left-legal scholarship that shares certain of CLS’s commitments - namely, law and political economy and movement law. The Essay raises particular concerns about his critique of the Warren Court’s criminal-procedural decisions, contending that Seidman underappreciates their benefits, overstates their costs, and neglects compelling reasons to doubt that dispensing with broad, nonnegotiable rules constraining the operation of the criminal legal system would benefit those most directly impacted by it.

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