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Response or Comment


A Comment on “The Rhetoric of Powell’s Bakke,” 38 Washington and Lee Law Review 63 (1981)


I think there is considerable value in the type of analysis undertaken by Professor LaRue in "The Rhetoric of Powell's Bakke." I believe, moreover, that such analysis serves a particularly valuable function at this time, by focusing our attention on the fact that what we designate as law is simply a matter of printed words. It is, of course, true that the law does not consist of words at random, but words structured in a particular way; and it is the particular way in which Mr. Justice Powell structures the words of the law that Professor LaRue searchingly scrutinized.

It is likely that Mr. Justice Powell would designate the LaRue approach as overly technical and narrow. Mr. Justice Powell has, for example, argued that criticism of the Burger Court for failing to obtain even a plurality for a given holding fails to take into account that this state of affairs is preferable to a Court wholly dominated either by a single justice or by a set of beliefs concerning what the law should be rather than what it is.

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