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Monday, June 18, 2012

A Plea Against Under-Theorization

N.B. This is a kind of cranky blog post, probably with minimal payoff. If you like it, think of it as a contribution to the Dave Hoffman genre of blawging.

If you look in Westlaw's JLR database, you'll notice the term under-theorized or undertheorized is used over 1100 times. Everytime I see that term used in drafts (and I've apparently given comments on at least a half dozen articles with this term), I crankily wonder: what is the optimal level of theorization? Has the author told us when we've reached that point? Can we be sure that the author's contribution achieves the optimal level?

Of course, as a dutiful crank, I wanted to avoid being the worst kind of cranky blogger: a cranky blogging hypocrite.  It turns out I did use that term twice. Crap.  So much for being a good crank. So, how to play it?? Well, both articles were in 2009. That's a long time ago... Nah, no good. Well, how's this: in my defense, I used the terms to describe the SCT's understanding of punitive damages, and the other in a piece looking at the SCT's views on the death penalty. That might seem defensible, but come on: if you're criticizing courts, then of course it's a fair point to make but it's possibly a bit on the trivial side. After all, courts, CASS SUNSTEIN TELLS US, make incompletely theorized agreements, and often for good reason.

Crankiness and exasperation are obviously not the right responses to claims of under-theorization then. But here's a serious and sincere set of questions. When you see the claim advanced in scholarship that X area of scholarship is undertheorized, I want to know: if this area you're writing about is under-theorized, why do you think that's right? How do you know when we've reached the right level of theorization? Is the tipping point between the right amount and the wrong amount obvious to all (or persons skilled in the art) or is it just an "I know it when I see it" moment? The truth is, I cannot tell  when we're optimally theorized. One more law review article, and that's it, we'll be bloated on this topic with theory, unable to accomodate any more of this stuff. So, to the hundreds of you (us!) who use this verbal tic lovely phrase to motivate (y)our scholarship, I want to know, really, is under-theorization the problem, or just under-thinking? IF it's the latter, why can't we just say so?


Posted by Dan Markel on June 18, 2012 at 03:28 PM in Article Spotlight | Permalink


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In many instances, isn't the charge of undertheorization merely a polite way of saying "Professor X makes many ambitious claims, few (or none) of which are adequately justified"? If so, then by implication, an argument would be adequately theorized when it has made some attempt to substantiate its main claims or its methodological framework.

Personally, I prefer the term "undertheorized" to the analogous term in philosophy, which is probably something like "conceptually confused" or "underdefended." This case seems like a rare instance where norms of legal scholarship are actually more charitable than norms governing other fields.

Posted by: Stephen | Jun 18, 2012 4:39:51 PM

In my experience, a professor's claim that a legal area or subject is "undertheorized" mostly acts as throat-clearing for the scholar's s subsequent announcement of his own way to look at the law. Arguments often are structured by presenting a problem and then offering a solution: If an author has a new theory, the claim of the law being undertheorized is thus used as the problem that the author can solve with his new theory.

Posted by: Orin Kerr | Jun 18, 2012 6:21:08 PM

Wait, I thought "under-theorized" is what you say in your cover letter to law reviews to explain why your piece is important and why it's shocking that more haven't written on this specific issue? And "over-theorized" or "the-right-level-of-theorized" describes all those questions that you considered writing on and chose not to, because it was a bit too crowded and most of the juicy arguments/theories had already been made/written/theorized?

Posted by: newby | Jun 18, 2012 7:13:56 PM

Underthinking is the steady state of human thinking. Whether students, professors, lawyers, judges (and on and on), lazy thinking is so much easier than digging deeper and deeper. Overthinking is typically a description of a situation where a number of shallow options are turned over and over in our minds so we don't actually know what to think. Deeper thinking is the solution to overthinking and underthinking.

Posted by: Mike Zimmer | Jun 18, 2012 11:06:26 PM

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