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Working Themselves Impure: A Life Cycle Theory of Legal Theories

74 Pages Posted: 28 Mar 2016 Last revised: 14 Jul 2017

Jeremy K. Kessler

Columbia University - Law School

David Pozen

Columbia Law School

Date Written: 2016

Abstract

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory’s persistence may foster down the line.

Keywords: legal theory, legal history, theory change, legal process, originalism, textualism, popular constitutionalism, cost-benefit analysis, law and politics, public law regulation, constitutional interpretation, statutory interpretation, rules and standards, Kuhn

Suggested Citation

Kessler, Jeremy K. and Pozen, David, Working Themselves Impure: A Life Cycle Theory of Legal Theories (2016). University of Chicago Law Review, Vol. 83, pp. 1819-1892, 2016. Available at SSRN: https://ssrn.com/abstract=2755578

Jeremy Kessler

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
9175486610 (Phone)

David Pozen (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/david-pozen

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