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.

Start with Christopher Columbus Langdell. Did he think of himself as a narrow doctrinalist? Surely not. He thought of himself as a scientist. Narrow doctrinalism described those he sought to replace, mindless drones who mumbled their tedious lectures on law without understanding its larger unifying principles and their relation to the larger world around them. (Langdell's opponents probably didn't fit his caricature of them, but of course that's precisely the point. He had a new vision of the law, so he needed them to play their assigned role.)

What of Roscoe Pound and the progressive legal scholars, the sociological jurisprudes? Narrow doctrinalists? Of course not, that's what Langdell and his ilk did. Of course, as Brian Tamahana has recently pointed out (and Tom Grey before him), that's a caricature of Langdell and the so-called formalists as well.

And what of the Legal Realists? Narrow doctrinalists? They are the very opposite of narrow doctrinalism, aren't they? Of course, Llewellyn famously demonstrated this point by emphasizing his differences with Pound and the sociological jurisprudes.

The legal process school? Surely *they* are narrow doctrinalists. Nothing of the sort. They were pragmatists and institutional thinkers. It was those *other* guys before them, the ones who didn't get the idea of institutional settlement, who were the narrow legal thinkers.

The lawyer economists? The crits? The feminists? the race crits? Not a narrow doctrinalist in the bunch. That's what the other guys they were reacting to did.

Even the neoformalists who arose in the late 1980s and early 1990s aren't narrow doctrinalists. My goodness, no, they deliberately choose formalism for pragmatic and institutional reasons. They are strategic thinkers par excellence. You must have them confused with the old formalists, you know, the narrow doctrinalists.

And so it goes, even to this day. Narrow doctrinalism is like halitosis: It's what the other fellow has.

Oliver Wendell Holmes, you may recall, announced grandly that the man of the present may be the black letter law man; but the man of the future is the man of statistics and the master of economics.

That was in 1897.

What do we learn from this perpetual casting out of the demon of narrow doctrinalism; what would, in an earlier age, have been called "sterile formalism"? We learn that legal scholars are perpetually distancing themselves from this imagined and imaginary approach of their elders, to justify what they do *now* as intellectually serious, advanced, and worthy of note.

Methinks the law professors doth protest too much.

Indeed, it is a classic sort of reaction formation. *You* are the narrow doctrinalist, the intellectually uninteresting person. In the bad old days, you got all the good jobs. But we are past that now, or soon will be. Your day is finished. A new breed of vibrant, sophisticated [fill in the blank] legal scholars has arisen, and we are here to take your place!

How many times will law professors cast out the demon of sterile formalism or narrow doctrinalism? As long as they are professors of law. And that is precisely the point. That is why this trope keeps returning with every generation.

The academic study of law is oriented in a professional discourse of procedures and power. All of your (the law professor's) students, or the vast majority, are planning to be lawyers; which is to say, they are *not* planning to be just like you. And they expect you to teach them law, and the rhetorics and discourses of law. They are training to be advocates, deal makers, fixers. And it's your job to show them how to do this with the materials of the law.

To be a professor of law-- as opposed to a professor of philosophy or biology-- is to be perpetually beholden to that professional discourse and practice; it is to be seen by everyone else, if not yourself, as member of a professional cadre. This strains one's claims to be a philosopher, a social scientist, a humanist, or indeed anything else.

Some legal scholars embrace this professional identity willingly. Others are more ambivalent. But all of us recognize, consciously or unconsciously, that in some way we must distance ourselves from simply being case and statute crunchers if we aspire to be intellectually serious and therefore deserve the title of academic or policy expert or social scientist or humanist or philosopher. The latter, we know in our heart of hearts, aren't mindnumbing case crunchers-- they are in pursuit of the true, the good, the just and the beautiful. That's what we are after too, and as Einer tells us, finally, we are just about to get there. Indeed, to quote Karen Carpenter, we've only just begun.

With this in mind, compare Einer's previous post on the rise of legal empiricism, in which he celebrates the fact that a new generation of empirically oriented law professors are finally interested in scientifically approaching the facts of the real world, and using scientific methods to determine the real world consequences of legal doctrines. Finally, at last, they are becoming equipped with the statistical tools that will help them discover what really works and what doesn't.

For anyone who has studied the history of American legal realism, these words will bring a smile. They have seen this rhetoric before: At last, a new breed of legal scholars who care about the real world consequences of laws, and who have the social science tools to discover them!

From now on law professors are going to party like it's 1939.

There is a real difference between then and now, of course. Einer is quite correctly talking about the assimilation into law schools of statistical and econometric techniques that didn't exist in the 1930's, when American social science was still quite rudimentary, and the social science skills of the Yale and Columbia law faculties were more rudimentary still. We are far from the days of Underhill Moore counting the illegally parked cars on Grove Street outside the Yale Law School building.

But in another sense, we are still performing the same rhetorical and ritual move that the realists (and those before and after them) have performed in the American legal academy forever and ever: we are still trying to carve out a space for ourselves as real intellectuals, social scientists, philosophers, or humanists. We do this (and always have done this) by distancing ourselves from an imagined, more primitive time of legal scholarship, when our forebears were more slavishly wedded to following and rationalizing the flow of official legal materials, without knowing or caring much about how the world really worked-- a time when legal dinosaurs walked the earth.

I welcome the rise of increased empirical social science skills on law faculties, just as I welcome almost every form of interdiscipinarity. Why shouldn't I? To paraphrase Chico Escuela (and Roberto Clemente, and Sammy Sosa), interdisciplinarity been very very good to me. But I know that the new cadre of the young and the statistically significant will face the same mental disturbances and ambivalences that previous generations of legal scholars have faced. Like their forebears, they too will need to project anti-intellectualism, insularity and ignorance about the real facts of the world away from themselves and onto someone else. For no matter how bright and shiny their interdisciplinary tools are, they will still be law professors, with positions in professional schools of law training young men and women to be lawyers. You can run your regressions, but you can't hide.


See, e.g., Harold Bloom, The Anxiety of Influence (1962?).

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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