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Practitioners and scholars who deal with areas of law in which facts quickly get ahead of settled law should pause for a moment to acknowledge the passing of Professor Ronald Dworkin. Professor Dworkin died on Thursday at the age of 81, and the tributes from admirers, friends, and students springing up on the internet and elsewhere speak to the impact of a life lived well. For a Journal (and a blog) that explores technology and entertainment law in ways that touch on science, art, aesthetics, moral rights, performance, products, and the unpredictable impact of human creativity, Professor Dworkin’s general approach to law and his work as a legal scholar and public intellectual deserve notice here.
In a typical exchange, Professor Dworkin once defended the integrity of an evidence-based science education while simultaneously rejecting scientism. It was necessary, from Professor Dworkin’s view, to recognize both the limits of any particular mode of inquiry and the value of engaging in those different explorations of a topic, or as he phrased it: “Flowers can be beautiful and love can be wonderful even if there is a good scientific explanation of why they exist.”
Professor Dworkin was also willing to challenge moral assumptions directly, as he did recently, arguing plainly against the proposition that college applicants have an absolute moral right to an admissions process that disregards race. In doing so, Professor Dworkin distinguished racial considerations designed to exclude certain groups from those intended to advance instituional goals for which race may well be relevant. The proper question under Professor Dworkin’s reasoning becomes: “Which schemes and goals are sensible?” In fields like ours where the speed of innovation so dramatically exceeds the speed of legislation and litigation, it is helpful to consider the moral underpinnings of particular protections extended to private property, public use of the commons, and the expression and exchange of ideas. Which schemes and goals are sensible? When we discuss the de facto ban on even mentioning “the big game” by name or tackle the problem of “copyblight”, we confront the law not only as it is but also as it ought to be.
Professor Dworkin’s clear-voiced arguments for law animated by values that go beyond economy and efficiency to consider the practical force of political morality will continue to inform debate in law schools, courtrooms, and legislative bodies. Perhaps some of that debate can take place here as well.
–Jeffrey W. Sheehan
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