Titans of Law Are Nobel-Worthy, Too
Now that this year’s Nobel Prizes have all been awarded, we can play the annual game of wondering what other fields should be included. Why should the great scientists, writers, peacemakers and economists have all the fun? (And get all the money?) Every year there’s a new suggestion: Why not visual art? Why not athletics?
This time around, the philosopher and legal scholar Brian Leiter has excited no small conversation among his colleagues by proposing a Nobel Prize for law. He posted a list of 51 legal scholars in the U.S., all but one over the age of 60, whom he thought others might rank among their top 10, and asked his colleagues to vote.
Leiter’s poll isn’t formal or systematic, and there is no way to test who cast a ballot. Still the results are interesting. The three top vote-getters, dominating the rest of the field, were Richard Posner, Cass Sunstein and Guido Calabresi. 1 It would be difficult to choose a better trio. All are enormously respected by their fellow scholars and have had considerable influence on the course of the law itself.
Sunstein, my fellow Bloomberg View columnist and a professor at Harvard Law School, has been influential in more fields of law than one can count, but is probably best known for applying the insights of behavioral economics. Calabresi, former dean of the Yale Law School and now a federal appellate judge, stands as a founder of law and economics and one of the field’s most original minds. His 1970 book “The Costs of Accidents” is one of the two or three most important and influential works of legal scholarship in the 20th century.
Which brings us to Posner. The voting, in truth, was not close. Posner, often described as the most influential legal mind of our time, is the subject of a quite excellent new biography by William Domnarski. Suffice to say here that Posner was a longtime professor at the University of Chicago Law School and for the last 35 years has been a federal judge. Although he was long known as the aggressive and controversial proponent of a particular brand of Chicago-school economics, his more than 50 books and several hundred law review articles 2 have cast his sharp analytical eye on subjects ranging from gay rights to national security to national disasters. Perhaps his most extraordinary achievement is the enormous respect he has engendered even among those who think he’s wrong. I very much doubt that many of those who voted for him in Leiter’s poll can be described as his disciples.
True, Leiter’s original list of nominees may be fairly criticized on several grounds, particularly racial and gender diversity. 3 But he has nevertheless performed a valuable service by encouraging us to evaluate our colleagues not according to the size of a corpus but according to the lasting influence of any part of that work. By this theory, an academic who wrote one great book and has since fallen silent for a decade or two, even if dismissed by colleagues as a has-been, ought to win if that one great book did enough to alter the course of legal thought.
In that way, a Nobel for the law would conform with how the committee awards the economics prize, according to this summary on its official website:
When considering what should be regarded as a “worthy” contribution, it is probably correct to say that the selection committee has looked, in particular, at the originality of the contribution, its scientific and practical importance, and its impact on scientific work. To provide shoulders on which other scholars can stand, and thus climb higher, has been regarded as an important contribution. To some extent, the committee has also considered the impact on society at large, including the impact on public policy.
Unlike the Peace Prize, the prize in Economic Science is not given for what one has done recently. The selection pays no attention to the latest thing. On the other hand, it is also not a reward for a lifetime’s body of work. Like the science prizes, it honors a “specific contribution.” By that measure, there’s little question that the voters have the first three living legal scholars right, although the profession might and perhaps should have a bit of a knock-down drag-out over who ranks where.
So, what other fields might we try? In addition to the ranking of legal scholars, Leiter himself conducted a similar poll regarding philosophers. Here the top three were Saul Kripke, Noam Chomsky and Derek Parfit, but once more the race was in practical terms a runaway: Nobody finished close to Kripke. And although I would have placed the estimable Charles Taylor and Alasdair MacIntyre easily in the top 10, again the list as a whole is hard to argue with. 4
One commonality among the existing prizes is that they honor in part the effect of one’s work on the world at large. An obvious candidate for a prize would therefore be history, the way we tell ourselves the story of who we have been, in order to learn who we are. And here there is actually precedent. Theodor Mommsen, the 1902 Nobel laureate in literature, won for writing history -- not historical fiction, but history. In the classical tradition, writing was honored for its own quality, without regard to whether the writer intended fiction or not. Alas, we no longer take this view -- thus the need for a new prize. 5
Under the criteria for the Nobel in Economic Science, the obvious winner in history would be Gordon S. Wood, but in the next few years he would be swiftly followed by, for example, Drew Gilpin Faust and David Brion Davis and many others we can easily name. (Especially once we branch out beyond Americans.)
Of course, there are no other Nobel Prizes, and there are plenty of prizes now in other fields, some carrying significant stipends. But the exercise is useful nevertheless. There are scholars of titanic influence everywhere, and it would be good to see them more noticed.
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In calling them “vote getters,” I am taking some license. The poll used Condorcet voting. If you’re not familiar with the term, you can find an explanation here, although just examining the poll results will likely make the methodology clear.
And several thousand judicial opinions. The man is a force of nature.
Leiter has conceded that he should perhaps have included Charles Lawrence and Richard Delgado. But where is Randall Kennedy? What happened to Meri Matsuda? And how on earth could he omit Patricia Williams?
Martha Nussbaum and Joseph Raz share the distinction of making both lists. Both are brilliant philosophers, but their presence on both lists might nevertheless be attributable to the fact that Leiter’s list of legal scholars is top-heavy with legal philosophers, a reflection, one presumes, of his affection for his own field.
True, historians have a long list of prizes of their own. But so do economists, writers and scientists.
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