Ordinarily there would be little profit in writing a reply to a reply to a reply to an article, but I thought it would be useful to revisit an exchange between myself and Jeremy Kessler & David Pozen on the subject of legal theories. (For earlier installments, see their “surreply” to my Response to their article, “Working Themselves Impure: A Life Cycle Theory of Legal Theories,” which I recently learned appeared last year as a post on this blog. ) This exchange exemplifies a point I’ve made previously, namely that distinguishing between “internal” and “external” “points of view” in law and legal theory is unhelpful and often serves as a way to shield one’s arguments from criticism instead of engaging with it.
The issue in this case is Kessler and Pozen’s “life-cycle” theory of the rise and fall of prescriptive legal theories. I largely agree with their descriptive claim that prescriptive legal theories (e.g., originalism, cost-benefit analysis (CBA)) often become “adulterated” over time, so that they no longer seem to serve the normative commitments that originally motivated the theory’s earliest proponents. But K&P also make an explanatory claim. They argue that what really explains the endurance of such theories—despite their failure to serve their original commitments—is their capacity to “serve interests and ideals that are not compassed by the theories themselves” (Working Themselves Pure, p. 1891). That is, these theories survive because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.
I questioned whether the life-cycle theory was useful for a lawyer, judge or law professor trying to assess whether a given prescriptive legal theory is worth embracing or rejecting, and I offered some reasons for skepticism. Kessler and Pozen answer that their theory enables the curious lawyer to compare their own “external” or “exogenous” explanation of why some theory, such as originalism or CBA, has persisted over time to the “internal” explanation offered by the theory’s own proponents. Such a lawyer will then be in a position to “make a judgment call about which is the more persuasive explanation, given her practical knowledge about the legal world.” (Some Realism, p. 4). They accuse me of privileging an “internal point of view” that rules out asking such questions.
Far from it. I think those are precisely the right kinds of questions to ask. I’m just skeptical that their theory helps much in answering them. The reason is not that K&P’s life-cycle theory takes an “external” explanation of why theories endure—and is therefore insulated from an “internal” perspective of lawyer and judges. Rather, the problem is that almost any evidence in support of the authors’ external explanations would also count as evidence of the internal explanations – namely signs of professional advancement and success in the legal and legal-academic world (e.g., law-review citations, conference invitations, judicial appointments, or whatever). For that reason, in my view, any lawyer, judge or legal scholar who wants to decide whether to adopt a theory (such as originalism or cost-benefit analysis) would be better served by engaging with – and critiquing – the substance of the theory’s claims and assumptions.
Take the example of originalism. The lawyer or legal scholar interested in taking stock of originalism as a constitutional theory may do better to skip K&P’s theory altogether and ask such questions as, “how much guidance does the text actually provide? Is talk of the document’s ‘original meaning’ just rhetoric designed to mask the discretion that judges actually possess? Should we then not at least be honest about what courts are doing?” (pp. 237-38). True, these are questions are substantive in the sense that they go to the empirical plausibility and normative legitimacy of the theory’s essential claims, but they do not privilege an “internal point of view” that assumes theories endure because of their intrinsic virtues. To the contrary they are precisely the kinds of questions long asked by legal realists, critical legal theorists, and others eager to expose what is really going behind law’s official story.
My larger point – and the point of my earlier article, linked to above – is that such talk of internal and external “perspectives” or “points of view” tends to stifle, rather than to stimulate, scholarly debate and inquiry. Of course, it makes good sense to describe a particular causal factor as being “internal” to a particular theory or practice or “external” to it. One can then investigate the matter empirically to see which factors matter more. The problem arises when those terms become modifiers of two “points of view,” thereby guaranteeing in advance what sorts of explanations will be on offer: those adopting the external point of view (e.g., sociologists or political scientists) offer “external” explanations, and those who adopt the “internal” point of view of (e.g., lawyers and judges) offer internal ones. Thus, what is properly the conclusion of an empirical (in a broad sense) inquiry is transformed into a methodological premise of that inquiry.
Once the intellectual terrain is thus divided, certain lines of defense emerge that short circuit genuine debate. “That has no effect on my view—it’s a purely external critique.” Or: “You can’t see what I’m saying because you’re locked in an internal point of view.” My exchange with K&P is just another example of exactly this kind of response. And one can see its appeal. It is typically harder to defend one’s position on the merits than it is to dismiss one’s critics as playing a different game.
Charles Barzun is the Armistead M. Dobie Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at cbarzun at law.virginia.edu