Alex Bickel's Law School and Ours

Abstract

One generation succeeds another almost without acknowledgment. Or so it seems in universities where students, who come and go recurrently, are always the same age and teachers scarcely notice that they alone are growing older. This inclination to ignore the passage of time is especially strong in law schools and legal institutions generally. When my first-year students begin our Constitutional Law course with Marbury v. Madison,' as when the Supreme Court cites the authority of Marbury, we all speak of the decision as vital, informative, and binding as if it had been decided only yesterday. And when, in the next breath, we criticize Marbury, identify its begged questions, and unmask its pretensions-the delight of every first-year Con. Law course-we are reciting a favorite folktale and entering into a great tradition. Thus Alex Bickel began his most important book, The Least Dangerous Branch, with Marbury on the first page followed on the second page by the assertion that "the opinion is very vulnerable" and citations to a continuous lineage of skeptical readers from "the late Judge Learned Hand," to Thomas Reed Powell, to Oliver Wendell Holmes, to James Bradley Thayer.