Epistemic Closure and the Schechter Case

10 Pages Posted: 16 Aug 2019 Last revised: 5 Nov 2019

Date Written: September 24, 2019

Abstract

In Gundy Justice Gorsuch offered two characterizations of the facts in the Schechter case: (1) “Kosher butchers such as the Schechters had a hard time following [the rules that required ‘straight-killing’ of chickens].” (2) “Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers.” Justice Gorsuch relied upon Amity Shlaes’s book The Forgotten Man to support these assertions.

In a blog post I criticized Shlaes’s account, and used Justice Gorsuch’s reliance upon it to illustrate what I called epistemic closure in the construction of the law – by which I meant the reliance upon a closed set of sources written by authors who generally shared a specific outlook on the way the world works.

Josh Blackman and Shlaes responded to my criticism. But, as I show here, their responses are largely mistaken and (or perhaps because) undertheorized because of their failure (or perhaps inability – an inability that may be intrinsic to the process) to recognize the existence of epistemic closure.

Keywords: Schechter case, Amity Shlaes

Suggested Citation

Tushnet, Mark V., Epistemic Closure and the Schechter Case (September 24, 2019). Harvard Public Law Working Paper No. 19-42. Available at SSRN: https://ssrn.com/abstract=3436689 or http://dx.doi.org/10.2139/ssrn.3436689

Mark V. Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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