In Defense of Brilliance

In welcoming Berkeley Law Professor Daniel Farber to the team at Jurisdynamics, Prawfsblawger Dan Markel pointedly refused to call Professor Farber "brilliant", saying that the label might "earn Dan's ire" due to an article identified only by its citation: 70 Minn. L. Rev. 917. Intrigued, I looked it up, and found a piece by Professor Farber that styled itself as a critique of "brilliance."

This is problematic to me, not the least because I've just been complimented on that blog as a "genius", right as they invite a blogger who indicts the very ideal of virtuosity. Vicious. I've read and enjoyed some of Professor Farber's work (primarily his engagement on CRT with Professor Suzanne Sherry), but I want to try and salvage "brilliance" from his merciless grasp.

The gist of the argument goes like this. A "brilliant" idea is one that is novel, somewhat counter-intuitive while still being intelligent, and is predictive or explanatory. The novelty of brilliance is what is off-putting to Farber. The fact that the idea hasn't been thought of before is a good indicator that people aren't following it, and since they aren't following it, we likely will find that the idea has little predictive power. Or alternatively, if the idea is explanatory, it seems odd to ascribe motivations to people that they don't realize they have. For example, John Hart Ely comes up with a brilliant idea of why people should accede to judicial review, having consented to it by certain vaguely written constitutional clauses. Ely's theory is brilliant (in part) because it's novel: no one has thought of it before. But if no one has thought of it before, it is difficult for Ely to argue that this non-articulated ideal is why the polity has consented to such a power like judicial review.

There are several problems I have with this. For one, I'm not sure that we want all of our theory to be predictive or descriptive of how the world is. At least some of it should be designed to change the world, not reflect it. Brilliance thus serves to articulate an alternative vision--dreaming of things that never were and asking "why not?" For two, I'm not as skeptical as Farber is that an idea that has yet to be articulated can't be a motivator. Many people can't converse fluently in psychology, yet we know that psychological factors exert important roles on the way people behave. These factors are present even in people who are unaware of them (or even those who scrupulously deny their existence). If we believe that certain values dig themselves into the polity where they circumscribe the boundaries of political or legal discourse without ever really coming to the surface themselves, then it is not hard to believe that many people would be motivated by a bundle of value-claims without being aware of it or being able to articulate it.

But, far and away, the biggest problem with Farber's argument is this: It bites--rather hard--into its own critique. That is to say, Farber's argument is a paradigmatic case of a "brilliant" argument within his own definition, which means by his own standards we should dismiss it. The idea that brilliance is bad, and that we should extol "Paul Pedestrian" is quite novel, counter-intuitive, and historically cuts against the grain of virtually every account of what society wants out of its leaders and scholars (not to mention its educational system). Furthermore, like the bad sort of brilliance Farber attacks, there is little evidence that his theory, intellectually pleasing as it may be, has any popular or social saliency. Ironically, Farber's article is probably more embedded in theory-land, and less applicable to the real world, than any of the intellectual dragons he tries to slay: Coase's Theorem, the works of Ely and Ronald Dworkin, etc..

I realize, of course, that Farber's article was likely written somewhat tongue-in-cheek. But I am amused by double-turns, and given that (previous dismissals notwithstanding) somewhat of a populist backlash against intellectuals and book learning, I think it is important to defend brilliance--in all of its forms--as an important and invaluable part of the public and scholarly life.