Working for the Weekend: A Response to Kessler & Pozen
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
I. The Life-Cycle Theory
Let me first briefly summarize their argument. According to the authors, the life cycles of certain legal theories take a similar shape. The theories they have in mind are those that “seek to negotiate highly politicized legal conflicts through the introduction of decision-making frameworks that abstract away from the central values in contention.”8
Id at 1822.
See id at 1844–47, 1859–68. The other theories the authors discuss are textualism and popular constitutionalism. See id at 1848–59.
Over time, however, as these theories gain traction, they become increasingly complicated and, more important, increasingly “compromised, by their own normative lights.”10
See Kessler and Pozen, 83 U Chi L Rev at 1821 (cited in note 2) (emphasis omitted).
Id at 1846 & n 79.
Id at 1867 (quotation marks omitted).
Id at 1821.
The authors offer the life-cycle theory as a model that describes in abstract terms this process of impurification or “adulteration.” At the first stage, the theory “introduces a decision procedure or criterion for judgment that seeks to resolve a highly politicized legal conflict in terms that are relatively alien to the main points of political contention.”14
Kessler and Pozen, 83 U Chi L Rev at 1822 (cited in note 2).
Id.
Id (emphasis omitted).
Id at 1823.
Kessler and Pozen, 83 U Chi L Rev at 1823 (cited in note 2).
The life-cycle model itself only describes this process of adulteration, but the authors also attempt to explain it. What seems in need of explanation is why a theory like originalism or CBA becomes popular only after losing the very attribute—namely, its ability to resolve first-order political conflicts through a decision-making procedure—that had made the theory attractive to its original advocates.19
See id at 1884.
Id at 1891.
Id at 1885.
See Kessler and Pozen, 83 U Chi L Rev at 1885 (cited in note 2).
See id at 1885–86, 1891.
See id at 1891.
The upshot of all of this is that the real work done by prescriptive legal theories may not be in advancing the normative goals that both motivated their original advocates and triggered the early rounds of criticism. Instead, their more lasting effects may lie in legal culture.25
See id.
Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
The authors conclude by suggesting two potential lines of work that legal scholars might profitably undertake.27
I thank the authors for clarifying that these are, in fact, two distinct research proposals rather than one.
Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
Id.
The second proposal is normative and critical. The authors suggest in the conclusion that the next time a hot new public law theory comes along, public lawyers might consider using the results of the authors’ study—or those of future empirical studies of the sort just mentioned—for the sake of employing “externalist approaches to legal argument.”30
Id at 1892.
Id.
II. Kessler and Pozen’s Research Proposals and the Puzzled Lawyer
My interest lies with these last two proposals. In particular, my question is how each might be useful to a lawyer, judge, or legal scholar. To answer it, I will borrow and modify a heuristic that H.L.A. Hart once invoked. He suggested that asking how the “puzzled man” thought about law could tell us something important about the nature of law.32
See H.L.A. Hart, The Concept of Law 40 (Oxford 3rd ed 2012). The “puzzled man” was itself a modification of the more famous character, the “bad man.” See also Oliver Wendell Holmes, The Path of the Law, 10 Harv L Rev 457, 459–61 (1897).
It may be helpful to first make clear the connection between the two proposals. Why would an inquiry into the sociological consequences of a theory, like that offered by the authors, be useful for those interested in criticizing it? One reason would be if those effects could themselves be usefully classified as either costs or benefits. The authors suggest this approach when they talk of the need to assess the “costs” of the theory.33
See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (observing that understanding the effects of theories “is integral to understanding why these theories succeed, and to assessing the costs of that success”).
Pub L No 111-148, 124 Stat 119 (2010).
But even putting aside the paradox seemingly involved in weighing the costs and benefits of cost-benefit analysis, this kind of argument would not be of much help to the puzzled lawyer. Or, more precisely, although the empirical work about the effects might be useful to her, the critical project would not seem to be doing much work. If the puzzled lawyer values certain kinds of lawyers and disciplinary methods, she may like that the theory helps advance those lawyers and those methods. If not, then she will not. But it is hard to see how deploying an “externalist approach[ ] to legal argument” against the theory would add much.35
Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
It thus seems more likely that the authors are using “costs” in a loose sense to refer to the effects themselves, not so much an evaluative assessment of those effects. A more plausible answer might then be that the sociological effects of a theory might aid the puzzled lawyer in evaluating a prescriptive legal theory because it provides her with evidence as to whether the theory’s claims are true.36
A threshold objection to the point made in the text would be to deny that a prescriptive theory, insofar as it makes claims about values, could be true or false at all. But the authors do not appear to endorse such pervasive moral skepticism. They seem nostalgic, for instance, for a time when constitutional theorists more forthrightly engaged in an “open pursuit of justice.” Id at 1828.
Id at 1824 (emphasis added).
Id.
Kessler and Pozen, 83 U Chi L Rev at 1885 (cited in note 2).
This would explain how the second project the authors envision—that of using “externalist approaches to legal argument” to critique prescriptive legal theories—could make use of the results of descriptive inquiries such as the one they have provided. Those arguments would look to the sociological effects of a theory in order tell a story about it—or give an explanation of its success—not in terms of the theory’s own concepts and commitments, but rather in a way that undermines those concepts and commitments. It would be like pointing to the negative economic effects of environmental regulation on the oil industry as a way to undermine the industry’s own scientific studies downplaying climate change.40
See, for example, Suzanne Goldenberg, Work of prominent climate change denier was funded by energy industry (The Guardian, Feb 21, 2015), archived at http://perma.cc/SUT7-UFXA.
This might be true even if the theory’s proponents are not consciously pursuing these goals. See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (emphasizing the need to look at the “unintended effects of prescriptive legal theories”).
See generally, for example, Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Oxford 1992); Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L J 1017 (1981). Though I recognize that this interpretation of critical legal history is controversial, but I believe it is trueright. Still, I cannot defend that view here. I thank Professor Oren Bracha for pressing me on this point.
The problem with this approach is that it is difficult to prove empirically the causal claim on which it depends. To see why, let us imagine that we want to follow the authors’ lead and conduct an empirical inquiry into the effects of legal theories. We want to know whether we can understand better what really explains the endurance of our target prescriptive legal theory. Following the authors, our hypothesis is that these theories persist because they function to serve the interests of the lawyers, judges, and law professors who articulate, defend, and advance them.43
See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (describing the “exogenous hypothesis” as the claim that “highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves”).
Difficulties remain, however, including what it means to be “similarly situated” and to “adopt” a particular theory. Measures of hierarchical status will also be controversial.
That seems plausible enough, but the difficulty that quickly arises is that this approach cannot rule out the most obvious competing hypothesis, which is that the theory’s success is explained by reference to its intrinsic merits. After all, if the theory truly is conceptually coherent, normatively compelling, and practically useful, and if other lawyers, judges, and law professors recognize as much, then one would expect its proponents to achieve professional plaudits as a result.
The authors openly acknowledge the possibility—even plausibility—of such an explanation. Citing the work of Professor Imre Lakatos, a philosopher of science, they raise the possibility of an “internalist” explanation for a theory’s endurance.45
Kessler and Pozen, 83 U Chi L Rev at 1888 n 285 (cited in note 2), citing generally Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Imre Lakatos and Alan Musgrave, eds, Criticism and the Growth of Knowledge 91 (Cambridge 1970).
Kessler and Pozen, 83 U Chi L Rev at 1887–89 (cited in note 2).
Id at 1888.
The authors ultimately (if tentatively) reject the internalist hypothesis.48
See id at 1889 (“Nonetheless, we do not think this hypothesis offers an actual alternative to our own hypothesis.”).
Id at 1889–90 (quotation marks omitted). The textualism example is theirs. See id at 1889. The CBA example is my own.
See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
But the internalist can explain such theory adoption. Those who adopt not only the theory’s “minimal prescriptions” but also the theory itself, despite its high costs, do so because they judge it to be right. They think, for instance, that a judge’s duty in a constitutional democracy is to stick closely to the constitutional or statutory text (originalism, textualism); or that sound public policy requires official decision-makers to weigh the societal costs and benefits of their decisions (CBA).
Still, the authors are skeptical. Although they acknowledge that adopting the minimum prescriptions of an adulterated theory could make a difference to how a judge decides a case, they doubt that applying such vague decision procedures yields determinate results in particular cases.51
See id at 1889–90.
Id at 1890.
Id. Note what is and what is not at issue here. When explaining case outcomes, the indeterminacy of legal doctrines or decision procedures count in favor of alternative, “nonlegal” explanations of the decisions because the legal indeterminacy suggests that something else must be doing the causal work in producing the outcome. Here, though, the goal is not to explain case outcomes but to explain theory adoption. Thus, the question is why lawyers, judges, and scholars would adopt a theory in spite of its inability to generate determinate results. So it is the theoretical value of determinacy for legal professionals that is at issue, not whether the theory in fact yields determinate results. This distinction is important for understanding the point that follows in the text.
The problem with this response is that it assumes that the theory’s capacity for producing determinate results is what accounts for its appeal among those who adopt the theory. For if that is not the source of its appeal, then the fact that the (now-adulterated) decision procedure fails to yield determinate results would not necessarily count against the internalist hypothesis. Proponents of the theory might still be drawn to it—in spite of its inability to yield determinate results—on account of the other values it serves (that is, for other “internal” reasons). Even if not true of the original proponents of the theory, this may be true of more recent theory advocates.
Take originalism, for instance. On the authors’ own telling, there were multiple normative commitments of early originalism, including (1) a “conservative frustration with the ‘activist’ constitutional rulings of the Warren and Burger Courts,”54
Kessler and Pozen, 83 U Chi L Rev at 1844 (cited in note 2).
Id at 1845.
Id, quoting Keith E. Whittington, The New Originalism, 2 Georgetown J L & Pub Pol 599, 602 (2004).
In fact, I suspect that is true, as a descriptive matter.
The authors seem to foresee an objection along these lines, and their response is to deny that the internalist hypothesis really amounts to an alternative hypothesis at all.58
Kessler and Pozen, 83 U Chi L Rev at 1889 (cited in note 2).
Id at 1890.
See id at 1840–41 (observing that due to “professional feedback effects,” including the revisions to a theory “intended to make the initial idea not just more politically palatable but also more intellectually and institutionally sound,” it may be that “[w]hat we are calling a process of impurification can thus be seen as a process of purification from another perspective: the very moves that undermine the theory’s initial normative aspirations may be ones that make it conceptually richer and more refined”).
But now there is a problem. Recall that the question initially put forward was how empirical or descriptive projects like that of the authors could help the puzzled lawyer. The hope was that it would do so by providing her with a better explanation for a given theory’s success than its normative power or conceptual elegance.61
See id at 1885.
Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
Proving that hypothesis, however, would require showing that the theory’s capacity to serve such interests actually does explain its success better than does the appeal of its substantive doctrines and commitments. Otherwise, there would be no reason to question the theory. Yet if the externalist and internalist explanations are just two different interpretations of the same phenomenon, then the puzzled lawyer will be no less puzzled than when she began: she now knows there are two perspectives from which she might view the theory in question—one “internal” to it and the other “external” to it. But she is not offered any criteria for choosing between the two.
III. The Puzzled Lawyer and the Internalist/Externalist Crutch
So what has gone wrong? And what is the puzzled lawyer to do now? The answer to the first question is that the authors’ claim has undergone a subtle transformation. Initially they purport to offer a hypothesis about the real “exogenous factors” driving the continued success of adulterated theories.63
Id at 1890–91.
Id.
See notes 31–38 and accompanying text.
But the claim then shifts slightly, likely because the authors recognize how difficult it would be to vindicate the external hypothesis empirically. Once they concede that even adulterated theories remain faithful to a minimally prescriptive core maxim (for example, to recognize the “centrality of the constitutional text” in the case of originalism), it will be almost impossible to disprove the “internalist hypothesis” that lawyers, judges, and scholars are drawn to the theory because of their genuine commitment to the maxim’s value rather than because of its “resonance with social expectations and self-conceptions about the lawyer’s or judge’s role.”66
Kessler and Pozen, 83 U Chi L Rev at 1890 (cited in note 2).
Id.
But now the puzzled lawyer is in a sticky wicket. For she is now presented not with two rival hypotheses, one of which may be vindicated by empirical inquiry, but rather with two different ways of looking at the same legal theory. Under one (“internalist”) view, there are many versions of the theory in question, some of which may be superior to others along certain normative dimensions (rationality, democratic legitimacy, etc.), and some which may produce more legally determinate outcomes than others (itself another normative dimension), but all of which share a commitment to a foundational norm or idea. For example, all versions agree that the constitutional text should be privileged in constitutional adjudication (originalism) or that governmental decision-makers that should calculate trade-offs when allocating governmental resources (CBA).
Under the other (“externalist”) view, the diversity of views that travel under the name of the theory itself—including ones that run contrary to the commitments of the theory’s original proponents—is itself evidence of the theory’s vacuity. The chief virtue of such “minimal prescriptions” is that they enable the lawyers, judges, and law professors who embrace them to validate and reinforce the judicial self-image as a neutral, constrained decisionmaker.68
Id at 1890.
So how should the puzzled lawyer now think of such theories and their minimal prescriptions? One tempting response is to say that the answer depends on her position relative to legal practice as a whole. A lawyer or judge within legal practice might justifiably view them in an “internal” or normative sense, whereas the sociologist might justifiably view them from the outside, as doctrines or purposes recognized by the group in question—in this case, lawyers, judges, and law professors. If that is right, then I have answered my own question by stipulation, insofar as I have posited that our puzzled lawyer is a lawyer. If she is a lawyer, then she likely will (and probably should) adopt the internal account. But a puzzled sociologist or political scientist likely would (and probably should) adopt the “external” account.69
But see David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan L Rev 575, 587 (1984) (drawing a distinction between “doctrinal” and “empirical” legal studies and suggesting that the contrast is “similar to that between theology and the sociology of religion. Theologians develop ideas about the world and humanity from within an authoritative tradition. Sociologists of religion look at theological production from the outside, attempt to account for it, and try to trace its impact on society”).
But this answer is unsatisfying because I had reason to ask about a puzzled lawyer. Recall that the authors themselves suggest that looking to the sociological consequences of prescriptive law theories could be instructive for “how we should evaluate and engage the legal theories around us” and useful for “commentators” on public law theories.70
Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
Perhaps a better route, then, would be for her to devote more thought to what she makes of those banal, minimal prescriptions in their own right. When assessing originalism, for instance, she might ask such questions as whether a judge should in fact begin with the constitutional text when deciding constitutional cases. If so, why? Is it because of the text’s claim to democratic legitimacy? How strong can such a claim really be given that only a small number of white males ratified it and did so over two hundred years ago? Regardless, 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? Or might it be that there is genuine value in maintaining the appearance that judges are principled adjudicators, even when that is not true?71
See Deborah Hellman, The Importance of Appearing Principled, 37 Ariz L Rev 1107, 1139–51 (1995) (arguing that the Supreme Court properly takes into account its own reputation for being principled on the ground that doing so may be necessary to ensure that it can enforce its judgments generally and thus legitimately).
These sorts of questions, of course, are the stuff of constitutional theoretical debate. They are questions about which sources, methods, and values matter for adjudication and legal decision-making more generally. No doubt one could generate analogous questions to ask of CBA, textualism, or popular constitutionalism.
Perhaps something like them is what the authors have in mind when they encourage commentators to focus, the next time a new public law theory comes along, on the “ways in which the theory’s advancement may reshape legal culture.”72
Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
But I do not see what is gained by calling such questions “externalist” or “internalist” ones. As the authors’ article itself nicely demonstrates, legal theories change over time and take on different meanings and commitments. Invoking the distinction when discussing some particular theory thus risks begging the central questions at issue because what seems “internal” to a theory to one person may well strike another as “external.”73
For example, at one point the authors note that some originalists think other originalists are not really originalists, with the result that when the authors see one (adulterated) theory of originalism, others see multiple originalist theories, with some being more deserving of the name than others. See id at 1835 n 37. To this objection the authors respond that they are content with the accuracy of their own account because “[t]he best a descriptive (meta-)theory such as ours can do is to acknowledge and assess this disagreement from an external perspective.” Id. The response makes it sound as if the authors do not take any substantive stand on what originalism as a theory of constitutional interpretation really is. But they do (and must) offer a substantive account of what originalism is. What unites originalists, in their view, is their commitment to “the decisional centrality of the constitutional text.” Id at 1834. That sounds like a plausible view, but the point is that it is a substantive, interpretive claim about what the object of their analysis is, which makes them vulnerable to the charge that they have misunderstood that object. I take this to be Professor Lawrence Solum’s point when he wrote, in response to an earlier draft of Kessler and Pozen’s article,
If you want to write about originalism as a constitutional theory, then you need to . . . dig into the actual theories advanced by originalists. This is hard work. It means that you actually have to read and analyze the theoretical literature, reconstruct the theoretical positions, and then consider the evolution of ideas and the shape of current theoretical landscape.
See Lawrence Solum, Kessler & Pozen on the Development of Normative Legal Theories (with Commentary on the History of Originalist Theory), Legal Theory Blog (Mar 30, 2016), archived at http://perma.cc/8FF2-XB25.The problem with the internal/external distinction, in my view, is that it seduces the metatheorist into thinking that she can study a theory or practice without doing the “hard work” of trying to understand the purposes, doctrines, and concepts that constitute it. That is true even if—especially if—one’s ultimate conclusion is to reject its central purposes as misguided, its doctrines as causally inert, or its concepts as incoherent.
The authors are hardly the first to succumb to the temptation of conceptualizing methodological debates in law around a dichotomy between internal and external points of view.74
See generally Charles Barzun, Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship, 101 Va L Rev 1203 (2015) (surveying and criticizing the use of this distinction in legal scholarship).
Conclusion
Is there a better alternative? I am not sure, but if so, I think it begins with the recognition that two things are simultaneously true: (1) all human endeavors to organize immediate human experience into systems or patterns of thought are imperfect and so contain anomalies and contradictions, and (2) we cannot live or think other than by relentlessly engaging in such organizing and generalizing endeavors, sometimes consciously and often not.75
Even framing the issue in this way is controversial insofar as it suggests that there is such a thing as pure, unconceptualized “experience” that we then organize by imposing concepts on it. Some philosophers have denied the intelligibility of such a view. See generally, for example, Donald Davidson, On the Very Idea of a Conceptual Scheme, 47 Proceedings and Addresses of the Am Phil Assn 11 (1973) (“I want to urge that this second dualism of scheme and content, of organizing system and something waiting to be organized, cannot be made intelligible and defensible.”); Wilfrid Sellars, Empiricism and the Philosophy of Mind (Harvard 4th ed 1997). But if true, this fact just reinforces the main point, which is that all our cognitive judgments are in some ways contestable and controversial.
Kessler and Pozen, 83 U Chi L Rev at 1868–80 (cited in note 2) (identifying a similar pattern in the life cycles of legal doctrines, political parties, and scientific theories).
See Ronald Dworkin, Objectivity and Truth: You’d Better Believe It, 25 Phil & Pub Affairs 87, 88–89 (1996) (arguing, in the context of debates about the nature of morality, that “Archimedean” theories, which “purport to stand outside a whole body of belief, and to judge it as a whole from premises or attitudes that owe nothing to it,” are misconceived).
Loverboy, Working for the Weekend (cited in note 1).
- 8Id at 1822.
- 9See id at 1844–47, 1859–68. The other theories the authors discuss are textualism and popular constitutionalism. See id at 1848–59.
- 10See Kessler and Pozen, 83 U Chi L Rev at 1821 (cited in note 2) (emphasis omitted).
- 11Id at 1846 & n 79.
- 12Id at 1867 (quotation marks omitted).
- 13Id at 1821.
- 14Kessler and Pozen, 83 U Chi L Rev at 1822 (cited in note 2).
- 15Id.
- 16Id (emphasis omitted).
- 17Id at 1823.
- 18Kessler and Pozen, 83 U Chi L Rev at 1823 (cited in note 2).
- 19See id at 1884.
- 20Id at 1891.
- 21Id at 1885.
- 22See Kessler and Pozen, 83 U Chi L Rev at 1885 (cited in note 2).
- 23See id at 1885–86, 1891.
- 24See id at 1891.
- 25See id.
- 26Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
- 27I thank the authors for clarifying that these are, in fact, two distinct research proposals rather than one.
- 28Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
- 29Id.
- 30Id at 1892.
- 31Id.
- 32See H.L.A. Hart, The Concept of Law 40 (Oxford 3rd ed 2012). The “puzzled man” was itself a modification of the more famous character, the “bad man.” See also Oliver Wendell Holmes, The Path of the Law, 10 Harv L Rev 457, 459–61 (1897).
- 33See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (observing that understanding the effects of theories “is integral to understanding why these theories succeed, and to assessing the costs of that success”).
- 34Pub L No 111-148, 124 Stat 119 (2010).
- 35Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
- 36A threshold objection to the point made in the text would be to deny that a prescriptive theory, insofar as it makes claims about values, could be true or false at all. But the authors do not appear to endorse such pervasive moral skepticism. They seem nostalgic, for instance, for a time when constitutional theorists more forthrightly engaged in an “open pursuit of justice.” Id at 1828.
- 37Id at 1824 (emphasis added).
- 38Id.
- 39Kessler and Pozen, 83 U Chi L Rev at 1885 (cited in note 2).
- 40See, for example, Suzanne Goldenberg, Work of prominent climate change denier was funded by energy industry (The Guardian, Feb 21, 2015), archived at http://perma.cc/SUT7-UFXA.
- 41This might be true even if the theory’s proponents are not consciously pursuing these goals. See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (emphasizing the need to look at the “unintended effects of prescriptive legal theories”).
- 42See generally, for example, Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Oxford 1992); Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L J 1017 (1981). Though I recognize that this interpretation of critical legal history is controversial, but I believe it is trueright. Still, I cannot defend that view here. I thank Professor Oren Bracha for pressing me on this point.
- 43See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (describing the “exogenous hypothesis” as the claim that “highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves”).
- 44Difficulties remain, however, including what it means to be “similarly situated” and to “adopt” a particular theory. Measures of hierarchical status will also be controversial.
- 45Kessler and Pozen, 83 U Chi L Rev at 1888 n 285 (cited in note 2), citing generally Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Imre Lakatos and Alan Musgrave, eds, Criticism and the Growth of Knowledge 91 (Cambridge 1970).
- 46Kessler and Pozen, 83 U Chi L Rev at 1887–89 (cited in note 2).
- 47Id at 1888.
- 48See id at 1889 (“Nonetheless, we do not think this hypothesis offers an actual alternative to our own hypothesis.”).
- 49Id at 1889–90 (quotation marks omitted). The textualism example is theirs. See id at 1889. The CBA example is my own.
- 50See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
- 51See id at 1889–90.
- 52Id at 1890.
- 53Id. Note what is and what is not at issue here. When explaining case outcomes, the indeterminacy of legal doctrines or decision procedures count in favor of alternative, “nonlegal” explanations of the decisions because the legal indeterminacy suggests that something else must be doing the causal work in producing the outcome. Here, though, the goal is not to explain case outcomes but to explain theory adoption. Thus, the question is why lawyers, judges, and scholars would adopt a theory in spite of its inability to generate determinate results. So it is the theoretical value of determinacy for legal professionals that is at issue, not whether the theory in fact yields determinate results. This distinction is important for understanding the point that follows in the text.
- 54Kessler and Pozen, 83 U Chi L Rev at 1844 (cited in note 2).
- 55Id at 1845.
- 56Id, quoting Keith E. Whittington, The New Originalism, 2 Georgetown J L & Pub Pol 599, 602 (2004).
- 57In fact, I suspect that is true, as a descriptive matter.
- 58Kessler and Pozen, 83 U Chi L Rev at 1889 (cited in note 2).
- 59Id at 1890.
- 60See id at 1840–41 (observing that due to “professional feedback effects,” including the revisions to a theory “intended to make the initial idea not just more politically palatable but also more intellectually and institutionally sound,” it may be that “[w]hat we are calling a process of impurification can thus be seen as a process of purification from another perspective: the very moves that undermine the theory’s initial normative aspirations may be ones that make it conceptually richer and more refined”).
- 61See id at 1885.
- 62Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
- 63Id at 1890–91.
- 64Id.
- 65See notes 31–38 and accompanying text.
- 66Kessler and Pozen, 83 U Chi L Rev at 1890 (cited in note 2).
- 67Id.
- 68Id at 1890.
- 69But see David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan L Rev 575, 587 (1984) (drawing a distinction between “doctrinal” and “empirical” legal studies and suggesting that the contrast is “similar to that between theology and the sociology of religion. Theologians develop ideas about the world and humanity from within an authoritative tradition. Sociologists of religion look at theological production from the outside, attempt to account for it, and try to trace its impact on society”).
- 70Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
- 71See Deborah Hellman, The Importance of Appearing Principled, 37 Ariz L Rev 1107, 1139–51 (1995) (arguing that the Supreme Court properly takes into account its own reputation for being principled on the ground that doing so may be necessary to ensure that it can enforce its judgments generally and thus legitimately).
- 72Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
- 73For example, at one point the authors note that some originalists think other originalists are not really originalists, with the result that when the authors see one (adulterated) theory of originalism, others see multiple originalist theories, with some being more deserving of the name than others. See id at 1835 n 37. To this objection the authors respond that they are content with the accuracy of their own account because “[t]he best a descriptive (meta-)theory such as ours can do is to acknowledge and assess this disagreement from an external perspective.” Id. The response makes it sound as if the authors do not take any substantive stand on what originalism as a theory of constitutional interpretation really is. But they do (and must) offer a substantive account of what originalism is. What unites originalists, in their view, is their commitment to “the decisional centrality of the constitutional text.” Id at 1834. That sounds like a plausible view, but the point is that it is a substantive, interpretive claim about what the object of their analysis is, which makes them vulnerable to the charge that they have misunderstood that object. I take this to be Professor Lawrence Solum’s point when he wrote, in response to an earlier draft of Kessler and Pozen’s article,
If you want to write about originalism as a constitutional theory, then you need to . . . dig into the actual theories advanced by originalists. This is hard work. It means that you actually have to read and analyze the theoretical literature, reconstruct the theoretical positions, and then consider the evolution of ideas and the shape of current theoretical landscape.
See Lawrence Solum, Kessler & Pozen on the Development of Normative Legal Theories (with Commentary on the History of Originalist Theory), Legal Theory Blog (Mar 30, 2016), archived at http://perma.cc/8FF2-XB25.The problem with the internal/external distinction, in my view, is that it seduces the metatheorist into thinking that she can study a theory or practice without doing the “hard work” of trying to understand the purposes, doctrines, and concepts that constitute it. That is true even if—especially if—one’s ultimate conclusion is to reject its central purposes as misguided, its doctrines as causally inert, or its concepts as incoherent.
- 74See generally Charles Barzun, Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship, 101 Va L Rev 1203 (2015) (surveying and criticizing the use of this distinction in legal scholarship).
- 75Even framing the issue in this way is controversial insofar as it suggests that there is such a thing as pure, unconceptualized “experience” that we then organize by imposing concepts on it. Some philosophers have denied the intelligibility of such a view. See generally, for example, Donald Davidson, On the Very Idea of a Conceptual Scheme, 47 Proceedings and Addresses of the Am Phil Assn 11 (1973) (“I want to urge that this second dualism of scheme and content, of organizing system and something waiting to be organized, cannot be made intelligible and defensible.”); Wilfrid Sellars, Empiricism and the Philosophy of Mind (Harvard 4th ed 1997). But if true, this fact just reinforces the main point, which is that all our cognitive judgments are in some ways contestable and controversial.
- 76Kessler and Pozen, 83 U Chi L Rev at 1868–80 (cited in note 2) (identifying a similar pattern in the life cycles of legal doctrines, political parties, and scientific theories).
- 77See Ronald Dworkin, Objectivity and Truth: You’d Better Believe It, 25 Phil & Pub Affairs 87, 88–89 (1996) (arguing, in the context of debates about the nature of morality, that “Archimedean” theories, which “purport to stand outside a whole body of belief, and to judge it as a whole from premises or attitudes that owe nothing to it,” are misconceived).
- 78Loverboy, Working for the Weekend (cited in note 1).