This is exactly what I feared. I’ve excited the lawyers (and even some judges). I can’t post all of their emails, but I thought this one was particular interesting:

Your first CHLA’s point tracks Justice Scalia’s opening argument in his brief book, A MATTER OF INTERPRETATION. Indeed, the title of his main essay is, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws.”
His basic argument is that the great majority of a law student’s first courses are not statutory or constitutional, but common-law: Torts, Contracts, Property. We sit around deciding, “what should the judge do?”, as the judge is bound only by precedent and his own good pragmatic judgment. (See Holmes’s “The Common Law”.)
By the time the eager students comes to Constitutional Law, he is already drunk with power:
“What intellectual fun all of this is! It explains why first-year law school is so exhilarating: because it consists of playing kind — devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind. How exciting! And no wonder so many law students, having drunk at this intoxicating well, aspire for the rest of their lives to be judges!” (AMOI at 7)
The trouble, then, is reminding law students that where democratic legislation — not common law and pragmatism — is the source of judicial authority, their discretion is much more circumscribed. Pointing out “the uncomfortable relationship of common-law lawmaking to democracy (if not to the technical doctrie of the separation of powers)”. (AMOI at 10)
Some lawyers just never get that, and some of those lawyers become judges … which is why Scalia’s quote above describes Justice Kennedy as well as it does any 22-year-old political science B.A.s in the front rows at Harvard’s Austin Hall classrooms.
Regards,
Another Concerned Harvard Law Alum