Posted by Orin Kerr:
Doctrinalism and the Legal Academy:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179972645
Both [1]Larry Tribe and [2]Jack Balkin have posted very interesting
responses to [3]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 "diving 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 the basic building block of legal
analysis. 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 new, changing quickly, or particularly unclear, good
doctrinal work often serves as an essential point of departure. On the
other hand, there is considerable anxiety in some corners of the
profession that too much discussion of doctrine is dangerous. Some
believe that excessive concern with everyday reality suggests an
insufficient engagement with deeper thoughts, as if one must choose
between knowledge and imagination. 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.
References
1.
http://balkin.blogspot.com/2007/05/larry-tribe-on-death-of-doctrinalism.html
2. http://balkin.blogspot.com/2007/05/mr-doctrinalism-says-reports-of-my.html
3. http://volokh.com/posts/1179757913.shtml
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