July 11, 2007
In an entertaining post at Balkinization, Michael Stokes Paulsen describes his lab partner in high school chemistry, Cal Tillisch:
Cal had a distinctive, memorable methodology for doing lab experiment reports, which he inculcated in me at every turn: "First, draw the desired curve. Then, plot the data. If time permits, do the experiment."
Paulsen then likens this method to constitutional interpretation:
Teaching Con Law this year ... , I told my students the Cal Tillisch chem lab experiment story.... I used it as a parable about how not to do constitutional interpretation -- and as a description of how some interpreters (courts, law professors, certainly many first year law students) seem actually to do Constitutional Law, at least from time to time: Pick the desired result, choose an interpretive methodology to match, and then, time permitting, do some research to find supporting evidence.
One of the commenters observes, "We are all Cal Tillisches. There is no other way."
If that is true about constitutional interpretation, it is only true of hard cases. Lots of cases yield easy answers. And that is probably true of most areas of law. In law schools, we spend so much time talking about marginal cases that we sometimes forget that most cases are easy.
But corporate law is fundamentally different from constitutional law: when we confront hard issues in corporate law, courts are not the only means to the desired result. The Delaware legislature or the SEC can change the underlying law. As a result, we don't need a Brown to counter our Plessy. We have no Plessys.
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