Becoming a Doctrine

59 Pages Posted: 2 Mar 2023 Last revised: 15 Mar 2024

Date Written: March 1, 2023

Abstract

On the last day of the 2021-22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted cert to hear a case presenting “the independent state legislature doctrine” – neither of which had been called “doctrines” there before. It begs a fundamental and under-explored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) cross over to become a “doctrine” complete with judicial tests and steps and exceptions? Taking an analogy to medicine, when does a series of symptoms become a “disease?” And, importantly, what consequences flow from attaching the label?

This article tackles those questions. It explores the significant consequences that come with the label “doctrine” – consequences for litigants, for lower court judges, and even for theories of legal change and popular constitutionalism. Becoming a doctrine is more than just semantics; it is a baptism that matters. And, significantly, it is not just the province of courts. This article traces the fingerprints of outsiders in the journey from legal idea to doctrine. Comparing the process to doctrine evolution of the past, this article argues that modern communication tools – new search methods, social media, amicus briefing – give political agents the chance to “doctrinize” an idea quickly and to generate legal change through courts. In short, “becoming a doctrine” is now a campaign…and one that deserves our attention.

Keywords: Doctrine, judicial decision making, Supreme Court, major questions doctrine

Suggested Citation

Larsen, Alli Orr, Becoming a Doctrine (March 1, 2023). William & Mary Law School Research Paper No. 09-467, Florida Law Review, Vol. 76, No.1, 2024, Available at SSRN: https://ssrn.com/abstract=4374736 or http://dx.doi.org/10.2139/ssrn.4374736

Alli Orr Larsen (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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