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 theory—and 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.