Constitutional fact and theory: a response to Chief Judge Posner.(response to Richard A. Posner, New York University Law Review, vol. 73, p. 1, 1998)

Michigan Law Review, March, 1999 by Merritt, Deborah Jones

Chief Judge Richard Posner's criticism of law professors and judges for spending too much time on constitutional theory and not enough on empircism is misplaced. Facts cannot serve as replacements for constitutional theory, nor can they resolve questions posed by it. Empirical knowledge is useful in revealing the theoretical questions underlying constitutional theory, but over-reliance on social science discoveries results in bad science and bad law.

In his James Madison Lecture on Constitutional Law, Chief Judge Richard Posner chides both professors and judges for devoting too much attention to constitutional theory and too little time to empiricism.(1) Although I agree with Judge Posner's endorsement of empiricism, I dispute the roles he assigns empiricism and theory....

Read the rest of this article with a Free Trial at HighBeam Research.

Premium Content Partnership | HighBeam Research provides an in-depth online archive library of reference works.