Tuesday, March 29, 2016

Kessler and Pozen's Life-Cycle Theory of Legal Theories

Jeremy K Kessler and David Pozen, Columbia Law School, have posted Working Themselves Impure: A Life-Cycle Theory of Legal Theories, which is forthcoming in the University of Chicago Law Review:
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle requires a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory’s persistence may foster, down the line.


Shag from Brookline said...

This aruticleis fairly ong for a now one-eyedlawyerin his 9th decade. I may try to read it on line with the comuter's magnifying feature in installments. I've read, too many times, statements by law profs that it takes a theory to beat a theory. This article focuses on, inter alia, originalism, of which there are many variations with different theories. And some varieties of originalism challenge other varieties. So with originalism there are a number of legal theories beating up on each other. Legal theories cannot be readily tested as are theories that physicists deal with, as law is not regarded as a science. So perhaps the article may be revealing in this regard. I hope the eyes (mine!) have it.

Shag from Brookline said...

I note a post on this article at the Legal theory Blog with a lengthy editorial comment by Larry Solum as to the originalism described in the article.

By the way, some recent articles on originalism question the role of historians/history in interpreting/construing the Constitution. See: Lee J. Strang's "Blunting the Instability Critique: Original Meaning Originalism and Computer-Assisted Research Techniques." [Available via SSRN; my copy lacks the URL.] Strang's article published in late 2015 makes several references to "Madison Notes," the actual Notes, not Mary Bilder's "Madison's Notes" published earlier this year. I am not aware of responses from historians (legal and otherwise) to Strang's article. In any event, Strang puts the CART [Computer-Assisted Research Techniques] before constitutional horses (historians, legal academics, linguists, etc).