My comment on Mark Tushnet's comment on Larry Tribe's comment
Below is the text of a disgruntled comment I've posted on Jack Balkin's excellent blog, Balkinization, in response to a post by Mark Tushnet, here, about Larry Tribe's announcement that he's suspending all further work on his constitutional law treatise. (See here.) I think Mark's being way too hard on himself, but I'd be interested in any comments readers have. Assuming I have any readers.
Mark, great post. Two reactions:
1. It hardly seems there's much for you to be apologetic about. Tribe suspending his treatise tends to confirm the truth of the harshest point you made about Tribe in your famous 1980 "Dia-Tribe" book review (Vol. 78, Michigan Law Review, page 694). On page 710 you suggested that Tribe's treatise was an example of the "corruption" of intellectual discourse, and that its lack of intellectual substance was explainable on the basis that Tribe wrote it not in the service of scholarly ideals, but out of ambition for public office.
Perhaps you did not know the back story when you wrote in 1980, but it appears you were dead on, as recent events have now seemed to confirm. In the early ‘80s a friend of mine who was quite familiar with the Carter Administration's 1976-77 transition process recounted to me with amusement Tribe's lobbying effort to be named Solicitor General. Tribe's bid was rebuffed, in part, with the observation he had never practiced law or even argued a single case as a consultant, and hence was not particularly qualified for the post. His response to being rejected was to do the treatise (apparently in an "I'll show them" mode), largely to help qualify himself for future opportunities, although of course in his preface Tribe professed timeless, transcendent purposes. The treatise did quickly lead to Tribe being hired to do cases, and much talk of a possible appointment to the Supreme Court or at least the Solicitor General position, but of course now Tribe's opportunity for any government position has disappeared. The main reason Tribe did the treatise -- his ambition for public office -- now being moot, it's not surprising he's cancelled the project, despite the timeless, transcendent purposes initially professed as motivating him to publish the treatise. Tribe's actions now tend to confirm you were right back in 1980: the treatise was all about Tribe's own ambition, and little more.
2. I think you're right the treatise has had little real impact within the legal academy, although it has been cited a lot by courts (mostly on routine points, as you state). Tribe's so-called seven "models" never made analytic sense and their influence has been essentially zero. It looks like Robert Nagel was right from the start that the "models" were just part of the fancy terminology used by Tribe to give his book a pseudo-scientific flair. My guess is the treatise has been cited mostly on routine points by academics as well, though I'm less sure of that. Probably a good percentage of academic cites were prompted by a desire to curry favor with Tribe, whose opinion on an up-and-coming scholar could easily advance or retard a career. Anyone who's received, or heard about, one of the "Larrygrams" Tribe has sent other scholars, even leading scholars, over the years suggesting they've plagiarized ideas supposedly developed in his treatise (saying things like, "I read your article with interest; it reminded me quite a bit of what I said on pp. ___ of my treatise; I'd be interested in your thoughts on that," etc., etc.) can attest to Tribe's keen desire to see his treatise cited even on points on which it may not deserve to be cited, and to get credit for points on which he may not deserve credit.
Of course, Tribe's irritating tendency to unfairly attack other scholars for taking credit for work he supposedly did first makes the recent reports about him plagiarizing from Henry Abraham and making extensive use of student ghostwriters all the more ironic.