Thursday, May 24, 2007
The Law Professor's Job: Casting out "narrow doctrinalism" and "sterile formalism"
Continuing the discussion that Einer Elhauge started (see these additional posts from Orin Kerr, Larry Tribe, Einer and myself), I was thinking that the claim that "narrow doctrinalism is dead" is not only nothing new, it is the most familiar pronouncement in the history of American legal education. Indeed, it is the claim that every self-respecting legal theorist has had to make at some point in their careers in order to justify their scholarly practices to themselves and to their audiences. We cast out this demon perpetually so that we can say that it is not true of us.
Instead of a long-winded comment, it would be quite helpful if you, Prof. Balkin, (or anyone else who teaches law) could: a) give examples (whether from actual an article or not) of "narrow doctrinalism" as defined by Einer; b) give an explanation (and examples) of what you have in mind by a "functional analysis" (including, if possible, citations to any articles), and c) why you all believe that legal scholarship was ever NOT interdisciplinary?
But doesn't all of this apply to most (if not all) academic disciplines, not just simply law profs? Doesn't each generation of academics experience the "young turks" phenomenon? E.g., the structuralist and the post-structuralists; the New Institutionalists rejecting the attitudinalists. Furthermore, can't the same point -- that most of the students in the class will not want or will be like you (the professor) -- be made about most disciplines? WIll most kids in a philosophy class be philosophers? WIll most kids a in a mathematics class be mathematicians? I see how law school is different from my examples, but I think there's enough similarity to undercut the full force of calling the law profs as totally distinct.
Jack's point is well-taken but, like his and Tribe's earlier posts, it deflects attention from but does respond to what I took to be Einer's main point. I prefer the label conceptualism to doctrinalism. By conceptualism I mean the effort to give the best conceptual account of a body of law. Most American scholars understand that any accurate account will not dictate a result in many a difficult case. But the concepts frame the inquiry and put some things off the table, at least in the short and mid-term.
Others have asked for an example of this type a scholarship. A modern exemplar is Peter Birks, who was the leading unjust enrichment (restitution) scholar in the English speaking world (as well as being a leading scholar on civil law and roman law). No one is doing work of Birks' caliber of that type in the private law in the United States. Birks' stature in England, and it was richly deserved, is comparable to the stature of Posner and Dworkin here.
If you will forgive me some gross caricatures, a comparison of Birks with Posner and Dworkin is instructive, for I believe each exemplifies different ways of thinking about the law. Posner thinks of law as an instrument. Dworkin thinks of it as a principled enterprise. Birks thought of it as a body of knowledge (I recall him saying "law is a library") that needs to be organized and explained. Most American legal academics would think his passion for taxonomy -- legal classification -- odd or daft.
I think Einer is right when he states that conceptual analysis is little valued by high-end American academics, outside the field of constitutional law. I have fairly good anecdotal evidence. In a comment to Einer's original post I sketched some possible reasons. I won't repeat the anecdote.
I want to close this post with a claim about a related phenomenon. The quality of legal argument and analysis in American courts, in particular state supreme courts, is often quite poor on issues of private law that the readers of this blog are likely to think arcane or technical. The quality pales in comparison to decisions of the current House of Lords, which I believe now is doing work of the caliber of the New York Court of Appeals in the era of Hand, Cardozo, and Andrews. While I am sure sociological and institutional reasons partly account for the generally higher quality of conceptual legal analysis in England, I believe it also is partly attributable to English lawyers thinking of private law, even in its arcane and technical parts, like American tax practitioners think of tax law, as a body of law worth mastering.
I am merely claiming a connection between the phenomenon of the low esteem among high academics for conceptual analysis of private law and the phenomenon of the low quality of legal analysis and argument by courts in arcane or technical areas of private law. I am not rash enough to make a claim about causation.
Nor am I criticizing the realist-turn. Indeed, I believe it is an important part of the mix that makes possible high quality conceptual analysis. Like the old New York Court of Appeals, the current Lords have drunken enough of the draught that produced legal realism to be impatient with legal fictions. But, like the old New York Court of Appeals, they are knowledgeable about private law doctrine and they care to give a coherent conceptual account of their decisions.
The quality of legal argument and analysis in American courts, in particular state supreme courts, is often quite poor on issues of private law that the readers of this blog are likely to think arcane or technical. The quality pales in comparison to decisions of the current House of Lords, which I believe now is doing work of the caliber of the New York Court of Appeals in the era of Hand, Cardozo, and Andrews. While I am sure sociological and institutional reasons partly account for the generally higher quality of conceptual legal analysis in England, I believe it also is partly attributable to English lawyers thinking of private law, even in its arcane and technical parts, like American tax practitioners think of tax law, as a body of law worth mastering.
I'm really only competent to judge my own state of CA, but I'd say sociological and institutional reasons explain most of any difference (I'm assuming you're right and that there is one). CA justices certainly indicate that they believe the technical aspects of the law are important. They tend to write lengthy opinions which say more and more about less and less; that's a sure sign of too much "expertise" and not enough imagination. Such a technocratic approach indicates to me doctrinalism (maybe even formalism) run amok; there's a crying need for some "conceptualism".
Mark Gergen’s comment about Birks and tax law is good. The formalist project is to take a body of individual laws and decisions and find some underlying principles that can be applied to new situations. That’s pretty scientific, isn’t it? Estoppel has no less existence than the neutron. Like the neutron, it might be replaced by something even more basic. Quarks are a way to explain neutrons; surplus maximization is a way to explain estoppel.
My comment got long enough that I've made it into a post at
To your first point (that other disciplines experience the "young turks" phenomenon), the answer is yes, at least in philosophy (my discipline). At least, there are clear intellectual fads, although philosophers as a whole are loath to admit it-- we're fond of snobbery ("The only real philosophy is being done at [insert name of university here]"), but loath to admit that philosophy has recognizable "-isms."
I took Jack's point about legal education being unique to be a little different than that. I can attest that, as far as I can tell, none of the students in my philosophy classes wants to be like me. However, if they DID want to be like me, they would have little trouble figuring out what it would be like to be a professional philosopher from what we do in class. Professional philosophy involves just the sort of trade in arguments that we do in the classroom. Jack's point, though, seemed to be that teachers of law are preparing their students to be practicing lawyers, not professors of law, and so they're preparing them to do something different than an academic exercise. As he puts it, they're not trying to train gee-whiz interdisciplinary academics, but "dealmakers" and "fixers."
I think that that must be right, much as I might secretly wish that everyone was an academic philosopher.
I've just applied to study a famous law professors and am in a very similair position. I've got savings from summer work and have been granted a scholarship, I'm still worried as to whether or not I'll have the funds to complete my degree...don't see my parents selling the house to help me out so I guess it'll have to be a part time job while studying for me. If you can do it I don't see why I can't.
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