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Working for the Weekend: A Response to Kessler & Pozen

17 Pages Posted: 12 Jun 2017  

Charles L. Barzun

University of Virginia School of Law

Date Written: June 12, 2017

Abstract

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. 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. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.

Suggested Citation

Barzun, Charles L., Working for the Weekend: A Response to Kessler & Pozen (June 12, 2017). Virginia Public Law and Legal Theory Research Paper No. 2017-33. Available at SSRN: https://ssrn.com/abstract=2984952

Charles Barzun (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6454 (Phone)

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