pageok
pageok
pageok
Doctrinalism and the Legal Academy:
Both Larry Tribe and Jack Balkin have posted very interesting responses to Einer Elhauge's guest post on the "death of doctrinalism," and I wanted to point them out and also offer a few thoughts of my own. In particular:

  1. If you define doctrinalism as meaning scholarship that is 100% descriptive, then that has been dead for a really long time (if it was ever alive). Even the great treatises of old were much more than descriptive works. They generally tried to take a complex and chaotic field of law and impose a normative order that owed much to the author's worldview. Sure, the treatises dressed up the author's opinion as if it were "divining the law," just like many trendy law review articles today dress up the author's opinion as "legal theory." (In the case of law review articles, the usual trick is for the author to pick a "theory" that matches his personal opinions; the article then argues that good result A is compelled by an application of grand theory B, which sounds much better than saying the author just kinda likes it.) But despite that, much of the underlying contribution was normative.

  2. If you define doctrinalism as meaning scholarship that takes doctrine seriously on its way to making other points, then I would say that the legal academy has a conflicted attitude towards it. On one hand, doctrine often provides a point of depature. It's hard to say how the law should change if you don't actually know what the law is and how it works in practice. Where doctrine is particularly new or unsettled, a really careful doctrinal analysis can make the difference between a thoughtful contribution and a bunch of b.s. On the other hand, there is anxiety in some corners that too much discussion of doctrine signals a limited imagination. An excessive concern with everyday reality suggests an insufficient engagement with deeper thoughts. From that perspective, engagement with doctrine is sort of like telling a Indy rock hipster that you listen to Billy Joel: In and of itself it may be fine, but dear Lord, what does it say about your priorities?

  3. As for Professor Elhauge's claim that constitutional law is "the least intellectually respected among law professors," I find that claim puzzling. I haven't encountered that view, as many of the biggest names in legal academia are con law profs. Of course, there are big names that a lot of people think are pretty vacuous, but that goes along with the territory of being a field with big names.