Everyone’s watching, to see what you will do.
Everyone’s looking at you, oh
Everyone’s wondering, will you come out tonight.
Everyone’s trying to get it right, get it right.

Loverboy 1

Introduction

In Working Themselves Impure: A Life Cycle Theory of Legal Theories, Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time.2 Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them.3 They thus offer the “life-cycle theory” as a theory of theories—a model that describes how this pattern of rise and decline occurs.4

The article is insightful, well argued, broad in scope, and stimulating to read. The authors’ descriptive claims struck me as plausible and probably correct. This brief Response thus does not take issue—at least not directly—with their characterizations of the theories in question. It instead focuses on the last few pages of their article, in which the authors discuss what they take to be their study’s methodological implications.5 There they encourage two different lines of inquiry. The first is an empirical research program based on their life-cycle theory of which their article might count as one example.6 The second is a normative or critical project that makes use of the results of the first line of research in order to criticize or engage with the kinds of public-law theories they examine.7

In some ways, my focus on these methodological suggestions is unfair to the authors because they are secondary to their main concern and are offered as nothing more than some concluding speculative thoughts. Nevertheless, I do so because these suggestions deal most directly with a question their study as a whole naturally invites: How, if at all, might the life-cycle theory be helpful to the lawyer, judge, or legal scholar?

  • 2. See generally Jeremy K. Kessler and David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U Chi L Rev 1819 (2016).
  • 3. See id at 1820–25.
  • 4. See id at 1822–23.
  • 5. See id at 1891–92.
  • 6. Kessler and Pozen, 83 U Chi L Rev at 1891–92 (cited in note 2).
  • 7. Id at 1892.