Mark Tushnet


Professor Kautz, a political theorist, tells lawyers to stick to our lasts. We ought to do only law and refrain from seeking assistance from political theory. This is not, however, because we are likely to do badly as consumers of political theory. Rather, Professor Kautz insists on a reasonably sharp distinction between roles. Political theorists "educate the public mind," whereas lawyers, in our capacity as lawyers, do law. Of course, in other roles lawyers may seek to educate the public mind as well. And there, I think, lies one of the two problems I wish to address here. I doubt that a sharp distinction can be drawn between doing law and educating the public mind. My second difficulty is that Professor Kautz's sense - I cannot call it more than that, in light of the allusiveness of his comments - of what law "is" seems to me substantially inaccurate. These two problems are related: Precisely because the outlines of the law are less clear than Professor Kautz appears to believe, the distinction between doing law and educating the public mind is quite thin.