an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Mr. Doctrinalism says: "Reports of My Death Are Greatly Exaggerated"
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."
It would be quite helpful if you, Prof. Balkin, or Prof. Tribe, or Prof Einer, (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?
Is this death the same thing that Judge Harry Edwards was lamenting in his piece: The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992)?
Edwards claims that academics are no longer pursuing practical scholarship that is meant to make things easier for judges and legislators (which seems to be the project of clarifying current doctrine). He criticizes as "legal nihilism", impractical work that treats doctrine and law as vague or indeterminate. Edwards also laments growing emphasis on interdisciplinarity in the legal academy as diluting the academy's ability to teach student's how to understand and engage current doctrine. A highpoint of the article is that Edwards calls out two of this forum's contributors: Sandy Levinson and Mark Tushnet as possible nihilists.
I was struck by a different bit of Elhauge's post: "So how can one overcome this entry barrier? One way is to get both a JD and a PhD." He points out that most of Harvard's recent entry-level hires have both, and that appears to be true at other top law schools as well. But I'm struck by what an unbelievably expensive credentialing process that is, both in dollars and in years of education. Doesn't this process exclude everyone who can't afford to stay in school (and out of the labor market) for seven or eight years past college?
Perhaps this could be compared to the movement in the English literature field from pure philology to a variety of burgeoning theoretical, analytical lenses: new criticism, reader response, Marxism, feminism, structuralism, and deconstructionism, to name a few. Surely there are fewer jobs now for an English professor whose sole understanding of a text is through the historical origin of the words themselves. However, in English, there is little if any practical job for a PhD other than scholar. The legal field, however, is not so self-referential, as most graduates are actually required to go out into the real world and use the law. I think the more pressing question in this debate is whether interdisciplinary scholars should be teaching doctrine to future practitioners.