Friday, March 16, 2018

Explaining the Persistence of "Impure" Legal Theories

David Pozen

Jeremy Kessler and David Pozen

In a recent post, Professor Barzun attributes to our article Working Themselves Impure the argument that when prescriptive legal theories (such as originalism, textualism, and cost-benefit analysis) persist past the point of “impurification,” they do so “because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.” Our explanatory hypothesis for theory persistence is neither as narrow nor as cynical as this formulation suggests. As we discuss in the article, legal theorists and practitioners have a wide range of plausible motives for adhering to an impure theory—one that no longer serves its initial normative commitments and instead advances a set of weaker and less determinate claims.

Conscious desire for professional advancement is one such motive. But our article does not place much emphasis on it, as the excerpts below reflect. Far more significant, we suspect, are practical and political considerations as well as unconscious motives traceable to ideological and institutional conditioning. The broader point here is that both the persistence of any given impure theory and the real-world effects of that persistence cannot reliably be explained without investigating the diversity of potential reasons why people would continue to endorse such a theory.

From our article’s introduction:

[T]he persistence of ever-more-adulterated legal theories cannot be explained by broad acceptance of their initial normative commitments, for the price of persistence is the unraveling of those commitments. When such theories endure, we can expect to find them serving interests or ideals exogenous to their stated aims. The continuing bipartisan embrace of originalism, for instance, may be bolstered by its tendency to enhance the political prestige of lawyers or the moral prestige of American nationalism. In any event, the real basis for the persistence of an adulterated prescriptive legal theory—and the real stakes of that theory’s persistence—will be only dimly illuminated by the theory itself.

And from the last few pages on which Barzun focuses:

[I]n light of the weaknesses of alternative explanations, the exogenous hypothesis—that highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves—strikes us as the most useful starting point for further empirical work.

If this hypothesis proves correct, it would warrant an important caveat to Part V.A’s relatively optimistic take on the life cycle. To whatever extent highly adulterated theories persist because they serve interests and ideals “off the page,” such persistence will not merely recapitulate the legal and political status quo. Instead, it will subtly shift the balance of social and economic forces within the status quo. At T6 of the life cycle, some legal actors will be in a more powerful position than they were at T1, and so will be better equipped to resolve the underlying dispute on favorable terms. Recapitulating a debate about the definition and enforcement of fundamental rights through an originalist lens could influence the ultimate outcome of the debate insofar as a bipartisan embrace of originalism enhances the persuasive authority of certain lawyers—for example, those steeped in Founding era history—or links the question of rights to a certain vision of American nationalism or exceptionalism. On multiple levels, then, adulterated theories may exert disciplinary effects on the legal academy and the practice of law even when they fail to achieve their internal goals—altering not only which sorts of lawyers (and nonlawyers) are in or out, up or down, but also which styles of research, rhetoric, and justification have more or less currency. These effects operate at the level of ideas and institutions, not just individual reputations and aesthetics.

A new research program for public law scholarship might investigate these dynamics within the framework of the life cycle model. The life cycle suggests that systematic scrutiny of the indirect and unintended effects of prescriptive legal theories is integral to understanding why these theories succeed, and to assessing the costs of that success.

Pace Barzun, the article’s life cycle model directly engages with “the substance of [a given] theory’s claims and assumptions.” Indeed, it is only when those claims and assumptions have broken down that the puzzle of a theory’s persistence comes to the fore. In the absence of the claims and assumptions that explicitly motivated the theory in the first place, investigation into other possible motives for adhering to the theoryand into the possible consequences of such adherence—is in order. Nothing in Barzun’s proposed deconstruction of the distinction between internal and external explanation in the social sciences undermines this point. We leave it to readers to judge whether our approach or Barzun’s is more likely to stimulate fruitful scholarly inquiry.

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