Tushnet’s Lawless World

I did not pick this unfortunate fight, but it is my regrettable task to have to respond to Professor Mark Tushnet’s Review of my book Design for Liberty: Private Property, Public Administration and the Rule of Law. Professor Tushnet regards Design for Liberty as a quixotic endeavor to reform the world, worthy of Glenn Beck, driven by a political naiveté that reminds him of an improbable cross between Candide and Mr. Micawber. Throughout his Review, he uses his not inconsiderable rhetorical skills to mock a book whose message and argument he does not understand.

A grizzled hanger-on from the largely defunct Critical Legal Studies movement, Professor Tushnet’s subpar performance stems from a combination of three interrelated defects: his ingrained skepticism of legal rules; his narrow intellectual focus that incorporates nothing outside of constitutional law; and his inveterate intellectual laziness, which makes it impossible for him to stick with a problem long enough to understand it. Professor Tushnet has always played an enfant terrible who believes that all efforts to create rule-bound structures are bound to disintegrate in failure. On narrow focus, his bibliography reveals a person who, over his thirty-year academic career, has not written a single book or article on contracts, property, tort, or indeed any common law subject, which are the focus of much of Design for Liberty. Finally, Professor Tushnet never cites any book or article, including those cited in the footnotes, that I have written to support the conclusions that I reach on the topics covered in Design for Liberty.

Professor Tushnet’s crippling weaknesses leave him unable to grasp the mission of the book, which uses the lens of private law to integrate the three elements set out in its subtitle: private property, public administration, and the rule of law. Here, as in my short book, it is not possible to develop in-depth positions that I have written about at length elsewhere. Yet the only way to explain the larger picture is to place some of the particulars that have been examined elsewhere into the background. Nonetheless, in this short response, I hope to give some indications as to how this program can be carried out.