Explaining The Persistence Of Impure Legal Theories

Jeremy Kessler together with David Pozen

In a recent post, Professor Barzun attributes to our article Working Themselves Impure the declaration that when prescriptive legal theories (such equally originalism, textualism, together with cost-benefit analysis) persist past times the request of “impurification,” they produce thus “because they serve equally tools of professional person advancement, enabling their adherents to improve their status inside the relevant academic or professional person community.” Our explanatory hypothesis for theory persistence is neither equally narrow nor equally cynical equally this formulation suggests. As nosotros verbalise over inwards the article, legal theorists together with practitioners receive got a broad hit of plausible motives for adhering to an impure theory—one that no longer serves its initial normative commitments together with instead advances a ready of weaker together with less determinate claims.

Conscious wishing for professional person advancement is ane such motive. But our article does non house much emphasis on it, equally the excerpts below reflect. Far to a greater extent than significant, nosotros suspect, are practical together with political considerations equally good equally unconscious motives traceable to ideological together with institutional conditioning. The broader request hither is that both the persistence of whatsoever given impure theory together with the real-world effects of that persistence cannot reliably endure explained without investigating the multifariousness of potential reasons why people would exceed along to endorse such a theory.

From our article’s introduction:

[T]he persistence of ever-more-adulterated legal theories cannot endure explained past times broad credence of their initial normative commitments, for the cost of persistence is the unraveling of those commitments. When such theories endure, nosotros tin aspect to detect them serving interests or ideals exogenous to their stated aims. The continuing bipartisan encompass of originalism, for instance, may endure bolstered past times its style to heighten the political prestige of lawyers or the moral prestige of American nationalism. In whatsoever event, the existent footing for the persistence of an adulterated prescriptive legal theory—and the existent stakes of that theory’s persistence—will endure alone dimly illuminated past times the theory itself.

And from the concluding few pages on which Barzun focuses:

[I]n low-cal of the weaknesses of option explanations, the exogenous hypothesis—that highly adulterated legal theories persist because they serve interests together with ideals that are non compassed past times the theories themselves—strikes us equally the most useful starting request for farther empirical work.

If this hypothesis proves correct, it would warrant an of import caveat to Part V.A’s relatively optimistic convey on the life cycle. To whatever extent highly adulterated theories persist because they serve interests together with ideals “off the page,” such persistence volition non only recapitulate the legal together with political status quo. Instead, it volition subtly shift the residue of social together with economical forces inside the status quo. At T₆ of the life cycle, some legal actors volition endure inwards a to a greater extent than powerful seat than they were at T₁, together with thus volition endure meliorate equipped to resolve the underlying dispute on favorable terms. Recapitulating a struggle close the definition together with enforcement of key rights through an originalist lens could influence the ultimate termination of the struggle insofar equally a bipartisan encompass of originalism enhances the persuasive control of for sure lawyers—for example, those steeped inwards Founding era history—or links the query of rights to a for sure vision of American nationalism or exceptionalism. On multiple levels, then, adulterated theories may exert disciplinary effects on the legal university together with the exercise of police draw fifty-fifty when they neglect to attain their internal goals—altering non alone which sorts of lawyers (and nonlawyers) are inwards or out, upwards or down, but also which styles of research, rhetoric, together with justification receive got to a greater extent than or less currency. These effects operate at the degree of ideas together with institutions, non exactly private reputations together with aesthetics.

A novel research computer programme for populace police draw scholarship mightiness investigate these dynamics inside the framework of the life bicycle model. The life bicycle suggests that systematic scrutiny of the indirect together with unintended effects of prescriptive legal theories is integral to agreement why these theories succeed, together with to assessing the costs of that success.

Pace Barzun, the article’s life bicycle model direct engages amongst “the centre of [a given] theory’s claims together with assumptions.” Indeed, it is alone when those claims together with assumptions receive got broken downwards that the puzzle of a theory’s persistence comes to the fore. In the absence of the claims together with assumptions that explicitly motivated the theory inwards the get-go place, investigation into other possible motives for adhering to the theory—and into the possible consequences of such adherence—is inwards order. Nothing inwards Barzun’s proposed deconstruction of the distinction betwixt internal together with external explanation inwards the social sciences undermines this point. We move out it to readers to approximate whether our approach or Barzun’s is to a greater extent than probable to get fruitful scholarly inquiry.