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26 Harv. J. L. & Pub. Pol'y 5 (2003)
The Proliferation of Legal Truth

handle is hein.journals/hjlpp26 and id is 19 raw text is: THE PROLIFERATION OF LEGAL TRUTH JACK M. BALKIN I am delighted that the Federalist Society asked me to participate in its Symposium on Law and Truth. I suspect, however, given my previous jurisprudential writings, that I was invited in order to play the role of Pontius Pilate. But I refuse that responsibility. I wash my hands of it. For I am a great believer in legal truth. Indeed, the theme of this essay is that we are awash in legal truth; indeed, we are drowning in it. In the world in which we live, legal truth is proliferating at an astounding pace, and this truth has important effects on our lives for good and for ill. The proliferation of legal truth and the effects of power produced by that proliferation are the subjects of this essay. In his remarks for this symposium, Michael Moore suggested that I am a conventionalist when it comes to legal truth.1 With respect to law, at least, he is right, although not necessarily with respect to other 2 matters. Law is an interpenetrating set of social conventions, and therefore statements of law can be true by virtue of those conventions. To be sure, these conventions may not be fully specified or fully determinate, and their content can change over time. In this essay, however, I focus on the converse point: that when legal conventions are sufficiently specified and sufficiently determinate, they can and do decide what is true or false from the standpoint of law. There are lots of true legal propositions; indeed, so many that I can't even begin to list them. They are true by legal convention, in virtue of the social practices that constitute law. As Susan Haack puts it, they are true as legal claims. Or as common law lawyers would * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. My thanks to Bruce Ackerman, Sanford Levinson and Reva Siegel for their comments and suggestions. 1. See Michael Moore, The Plain Truth About Legal Trugh, 26 HARV. J.L. & PUB. POL'Y 23 (2002). 2. See J. M. BALKIN, CULTURAL SOFrWARE: A THEORY OF IDEOLOGY 142-50 (1998). 3. See Susan Haack, Truth, Truths, Truth, and Truths in the Law, 26 HARV. J.L. & PUB. POL'Y 17 (2002).

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