Mr. Doctrinalism says: "Reports of My Death Are Greatly Exaggerated"

JB

Like Larry Tribe, I was fascinated by Einer Elhauge's recent posting on the "death of doctrinalism." Einer defines doctrinalism as "the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure." However, "scholarship that considers doctrine or takes it seriously" is not doctrinalism for that reason alone. Indeed, "[i]t would not . . . be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete."

Now, defined in this way, there's very little scholarship these days that is doctrinalist, whether in Constitutional law (which Einer thinks the last refuge of narrow doctrinalism) or outside of it. Scholarship that focuses on doctrine these days -- both constitutional and nonconstitutional-- is heavily historical, or functionalist or consequentialist. It always seems to be measuring consequences and articulating functions and demanding reform. In fact, I'm trying to figure out what articles fit Einer's narrow vision of doctrinalism that *used* to get you a great job but don't anymore. If anybody has any examples of the genre, please list them in the comments. Perhaps Einer is thinking of the treatise tradition, but that vanished long ago, and in fact it wasn't as narrow as Einer remembers it. (Think of Areeda and Turner as only one example.) In fact, the great treatise of our era-- Larry Tribe's American Constitutional Law, is the very opposite of Einer's narrow definition of doctrinalism. It's chock full of historical, consequentialist and functionalist analyses.

Einer is certainly right if he means that legal scholarship that gets you a good job has to be interdisciplinary and otherwise pay considerable attention to institutions and consequences; it's also quite important, if you are doing policy work, to know some social science. But that revolution in legal scholarship occurred about twenty to thirty years ago, by my reckoning. At least when I started teaching in 1984, it was already quite clear that interdisciplinarity was the way to go.

Let me offer the converse hypothesis from Einer's: No matter how interdisciplinary legal scholarship becomes, most legal scholarship will still pay a lot of attention to cases, statutes, and other legal materials, and will offer normative prescriptions about their reform and interpretation. The reason is that legal scholarship is written by people who teach in professional law schools, whose task is to prepare the vast majority of their students for the practice of law. The professional orientation of law schools repeatedly pushes legal scholarship back toward a focus on legal materials. As I've written before, legal scholarship is always engaged in a sort of rope-a-dope with various interdisciplinary incursions-- it is repeatedly invaded by them, but never conquered by them. Rather, legal scholarship co-opts and adapts other disciplines to its professional orientation. The reason why legal scholarship continues to do this is that knowledge and development of law is not really a discipline in the academic sense. It is more like "area studies" combined with various forms of professional expertise.

So the really interesting question is not whether "narrow doctrinalism" is dead. It is whether you can get a great law teaching job these days professing no interest whatsoever in doctrinal elaboration, doctrinal reform, doctrinal justification or doctrinal history. Even at Yale, which has long had a reputation for not caring much about law at all, this simply isn't the case.

Apropos of Yale's reputation, this post wouldn't be complete without poking a little fun at my own law school, so let me close with this story, which Sandy Levinson likes to tell. At my 50th birthday party last year, we were kidding Jed Rubenfeld, who had just published a novel about Sigmund Freud visiting turn of the century New York City. It was the second novel recently written by a member of the Yale Law faculty-- Steve Carter's was published several years before. Bruce Ackerman said worriedly: "You know at this rate, nobody at Yale Law School's going to write about law any more."

The room erupted in hysterical laughter.
Posted 6:53 PM by JB [link]