Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics

Abstract

Phil Frickey's death leaves an irreparable hole in the fabric of legal scholarship. Frickey never deviated from the perfect balance of integrity and tact. He was generous and kind, yet his Midwestern virtues were tough and supple as steel. He radiated the instinct of justice, yet his judgment was clear eyed and impervious to distraction. His scholarship was unmistakable: judicious, perspicuous, wide ranging, and generative. I treasured my association with Professor Frickey. I learned from him in dimensions scholarly and non-scholarly. I mourn his loss in the best way I can, by examining seriously a question that haunted Professor Frickey throughout his long and distinguished career: Should judges take account of the political consequences of their decisions when these consequences affect the ongoing legitimacy of law? In this Article, I explore whether the virtue of technical legal craft, which exemplifies the ideal of a formally autonomous law, can appropriately be joined to the virtue of judicial statesmanship, which exemplifies the ideal of politically responsive law.