John Roberts just inspired the trolliest essay in law review history

Ouch, Roberts got served so hard his mama must have thought he was a subpoena.
(Win McNamee/AFP/Getty)

In 2011, Chief Justice John Roberts issued a major diss to legal academics, quipping, "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something."

Ouch. But at the time Roberts made that wisecrack, no law professor had actually written an article about the relevance of Kant's moral philosophy to evidentiary approaches in 18th-century Bulgaria. So George Washington law professor and troll extraordinaire Orin Kerr has stepped up to fill this crucial gap in legal scholarship.

Kerr's paper, helpfully titled "The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria," isn't actually in a law review yet — it's posted in draft form on the Social Science Research Network website. It is only three pages long but impeccably footnoted.

According to Kerr, there are three very good reasons to believe that Immanuel Kant and 18th-century Bulgarian evidence law had absolutely nothing to do with each other:

  1. Kant lived during the 18th century (in Prussia), but his ideas didn't spread to intellectuals in Bulgaria, which is in southern Europe, until halfway through the 19th century.
  2. Bulgaria was part of the Ottoman Empire during the 18th century, so its legal system was partly based in Sharia law but not at all based on the ideas of European philosophers like Kant.
  3. "It appears that Kant never wrote about evidence law."

Kerr's article is fine as far as it goes. But it blithely concludes that just because Kant had no influence on 18th-century Bulgarian evidence law, there is "no apparent connection" between the two. His own article makes it very clear that this isn't the case: in fact, Bulgarian evidence law included at least one serious violation of Kantian ethics.

Kant is best known for the Categorical Imperative: the notion that you should treat all people as agents unto themselves, rather than as means to your own ends. Bulgarians in court, however, appear to have felt very differently. As Kerr writes:

"Children were allowed to testify only in cases involving border disputes involving land plots. According to one account, the custom was to bring children to the relevant plot and then painfully pull their hair to ensure that they would remember the borders and be able to testify about them in court."

Pulling children's hair as a way to get them to remember land boundaries seems like a pretty textbook example of treating people as means. When reached for comment, Professor Kerr said, "I agree that this one reported rule conflicts with Kant's categorical imperative, but that rule alone doesn't definitively rule out a Kantian influence in other evidentiary rules."

Maybe the real question isn't whether Kant did have any influence on evidentiary approaches in 18th-century Bulgaria — it's whether he should have. However, when Vox asked Kerr for his opinion, he replied, "Of course, I Kant answer that."

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