Jeremy K. Kessler (Columbia Law School) and David Pozen (Columbia Law School) have posted Working Themselves Impure: A Life-Cycle Theory of Legal Theories (University of Chicago Law Review, forthcoming) on SSRN. 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 requires 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.
Via Larry Solum at Legal Theory Blog, who adds extensive comments raising questions about the paper's treatment of originalism. Among others:
In my view, originalism is still at a fairly early stage of theoretical development. Although ideas that are now labeled "originalist" go back to the founding era, originalist theorizing (as a enterprise that self-consciously aims at articulating a fully developed constitutional theory) only begins in response to Brest and other critics. Sophisticated theorizing really begins in the 1990s, with Gary Lawson playing a key role, followed by work by Barnett, Whittington, and others. Today's theoretical scene which includes those figures and many others, including Baude, McGinnis, Rappaport, Sachs, and many others, represents groundbreaking work that is engaging many of the fundamental theoretical questions for the first time. The state of play in 2016 is not the late stage of the development of originalist theorizing. A better characterization is that originalism is finally making the transition from a very early stage of development to what might be thought of as the early middle phase.
Posted at 6:12 AM