Constructing a Way Out of the Liberal Predicament

Abstract

Professor Bruce Ackerman's Reconstructing American Law is about lawyering in the modern activist state (ch. 1).' The activist state, a child of the New Deal,2 is a place where government is both a valued and a feared participant in the lives of its citizens. Proponents of the activist state, Ackerman and other liberals included, believe that government is necessary to guarantee basic rights and freedoms and redistribute power. Simultaneously, they believe that government threatens those very rights and freedoms and unfairly concentrates power. Lawyers, the leading architects of the activist state, are called on to monitor government and to check institutional abuses while protecting liberties. This mediating role assigned to lawyers is no small task given the complexities of modern society, such as vast amounts of legislation, a proliferation of agencies administering to perceived social and economic ills, correspondingly arcane bureaucratic regulations, and a market economy in which the line between government regulation and private enterprise grows increasingly blurry. To meet the challenge, Ackerman argues that lawyers need a new philosophy, and Reconstructing American Law is an initial attempt to meet this need.