A friend recently sent me an imaginative article that proposes a radical change in the law that IMHO has a zero percent chance of becoming law. It called to mind Suzanna Sherry’s comment that there is "a phenomenon that has come to pervade legal scholarship: the idea that novelty is the ultimate test of an idea's worth. It often seems today that proposing counterintuitive ideas is the fastest way up the academic ladder. As one young scholar puts it: 'It is the intellectually innovative candidate who is most likely to get hired and succeed professionally, and ingenuity is not the same as dependable judgment.' The more radically an article departs from conventional wisdom, the more likely it is to be published in a prestigious law review." Suzanna Sherry, Too Clever by Half: The Problem with Novelty in Constitutional Law, 95 Nw. U. L. Rev. 921, 926 (2001).
In that article (which I highly commend), Sherry also observes that "cleverness can take a theory only so far. At some point, a scholar must use judgment or common sense to evaluate the results. One flaw common to all of these theories is a lack of judgment and common sense. Their authors have forgotten that 'it [i]s more important to be right than to be clever [and] [i]t is the thinkers with all the razzmatazz who are likely to get it wrong,'" citing Richard Epstein's article Life Boats, Desert Islands, and the Poverty of Modern Jurisprudence, 68 Miss. L.J. 861, 887 (1999).
For those of you who need still more on the point, see Dan Farber's classic articles The Case Against Brilliance, 70 Minn. L. Rev. 917 (1986) and Brilliance Revisited, 72 Minn. L. Rev. 367 (1987).
