March 7, 2018

Kessler and Pozen's Response To Barzun's Response To Kessler and Pozen on the Life Cycle of Legal Theories @jeremykkessler @ColumbiaLaw @UVALaw

Jeremy Kessler and David Pozen, both of Columbia University Law School, have published Some Legal Realism About Legal Theory as Columbia Public Law Research Paper No. 14-584. Here is the abstract.
This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of their persistence may offer a compelling alternative to increasingly convoluted internal explanations. The former kinds of explanation cannot decisively defeat the latter, but they do give the legal community a choice. Barzun would prefer to foreclose this choice: while sociologists and political scientists might be expected to prefer a given external explanation, he submits, the puzzled lawyer "likely will (and probably should) adopt the internal account." Barzun certainly has history on his side in assuming that many in the legal community will be inclined toward internal accounts of theory persistence—believing that those prescriptive theories that enjoy long lives do so in virtue of their "intrinsic merits" or "rightness." Yet a dissenting tradition of lawyers, judges, and legal scholars, from early-twentieth-century legal realists to late-twentieth-century crits, has sought to trouble this professional panglossianism. It is our hope that Working Themselves Impure will prove useful to those who might wish to do so in the future.
Download the paper from SSRN at the link.

Read Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, Virginia Public Law and Legal Theory Research Paper No. 2017-33, here. Here is the 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.

Download the response at the link.

Read Jeremy Kessler and David Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 University of Chicago Law Review 1819 (2016), here. Here is the 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.
Download the article at the link.

Peace out?  :-)

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