Theory-Induced Blindness in Legal Scholarship

58 Pages Posted: 9 Mar 2021

Date Written: March 8, 2021

Abstract

The truth matters, and, consequently, how scholars seek the truth also matters. Scholars use theory as a framework to help them attain the truth. Accordingly, a scholar's theoretical approach must be accurate; it must not be tainted in any way. Theory-induced blindness taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways.

This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars' social constructionist arguments, and two professors' defense of learning style theory. Finally, the conclusion will discuss the best solution for avoiding theory-induced blindness--evaluating theories with critical thinking.

Keywords: legal scholarship, cognitive biases, law and economics, post-modern legal thought, legal history

Suggested Citation

Fruehwald, Edwin S., Theory-Induced Blindness in Legal Scholarship (March 8, 2021). Available at SSRN: https://ssrn.com/abstract=3800396 or http://dx.doi.org/10.2139/ssrn.3800396

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