15 June 2017

Theory Fade

'Working Themselves Impure: A Life Cycle Theory of Legal Theories' by Jeremy K. Kessler and David Pozen in (2016) 83 University of Chicago Law Review 1819-1892 comments
 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 counsels 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.
'Working for the Weekend: A Response to Kessler & and Pozen' (Virginia Public Law and Legal Theory Research Paper No. 2017-33) by Charles L. Barzun comments
In Working Themselves Impure: A Life Cycle Theory of Legal Theories, Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.
Barzun concludes
The authors are hardly the first to succumb to the temptation of conceptualizing methodological debates in law around a dichotomy between internal and external points of view.  The distinction tempts the legal metatheorist because it promises to yield insights free of controversial moral or metaphysical commitments. Maybe that is why the distinction is now endemic to legal theory. But in my view, the distinction is an intellectual crutch that ought to be kicked away for good. It no longer serves any useful purpose, and it blocks clear and creative ways of thinking about law. ... 
Is there a better alternative? I am not sure, but if so, I think it begins with the recognition that two things are simultaneously true: (1) all human endeavors to organize immediate human experience into systems or patterns of thought are imperfect and so contain anomalies and contradictions, and (2) we cannot live or think other than by relentlessly engaging in such organizing and generalizing endeavors, sometimes consciously and often not. Accepting (1) means that we should not be surprised by the authors’ observations about legal theories because, as their own illuminating discussion shows, the adulteration process they identify is pervasive in intellectual life. Accepting (2) means that there is no escaping the difficulties recognized by (1). So the authors are right that no decision procedure can free judges from the need to make controversial evaluative judgments when deciding cases. But nor can any “perspective” be reached that will free legal theorists (or metatheorists) from the need to make controversial conceptual, causal, or evaluative judgments when analyzing theories for the sake of practical decision-making of any sort. If there is no exit from this predicament, then the best the metatheorist can hope for is that she be- comes marginally more aware of the “interests and ideals” driving her own judgments and perhaps someday even learns to distinguish between the two. In the meantime, all she can do is keep on trying to get it right, get it right.