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The Unbearable Illegitimacy of American Law

For some time now, American law and lawyers have had a legitimacy problem.  Most Americans must wonder how it is that unelected federal judges have the power to declare that no state government can punish consensual homosexual relations, prohibit abortion, or permit prayer in the schools (to mention just a few of the striking things the federal courts have done in the past few decades).  Nothing in the Constitution or federal law clearly requires these holdings, and all of the laws struck down by federal courts were well-established legal practices for generations.  From at least as early as 1786, some Americans have wondered whether we really need so many lawyers.  In that year, Benjamin Austin, a Boston merchant who thought American lawyers woefully ignorant of commercial needs, declared that they were not a necessary “order” in a republic; yet, two centuries later, we had approximately one million members of that order (giving us, probably, a higher percentage of lawyers per capita than any other nation in history).

Two interesting volumes address these and other puzzles of our current legal establishment.  In Law, Pragmatism, and Democracy, the Hon. Richard Posner (U.S. circuit judge for the Court of Appeals for the Seventh Circuit), easily the most prolific federal judge who ever lived (he has published more than 40 books), explains why he believes it makes sense to give...

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