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Wednesday, March 18, 2009

What's in a Name?: The "New Doctrinalism"

Cumberland's Brannon Denning has a very interesting and enjoyable piece in the new Tennessee Law Review titled The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller.  It's available on Westlaw, of course; for those who don't have subscriptions, an earlier draft is available on SSRN here.  Brannon writes that there is "a renewed interest among [constitutional] scholars in the formation and application of doctrine.  What I am calling the "New Doctrinalism" in constitutional scholarship focuses less on controversies over the fixing of constitutional meaning and more on the rules courts develop to 'implement' . . . those constitutional commands."  He names as examples of the New Doctrinalists Richard Fallon, Kim Roosevelt, Adam WInkler, Dan Coenen, David Strauss, Mike Dorf, and others -- including me, for my piece on deference.

Well!  It's always very nice to be named as a member of a school of thought, particularly in such stellar company.  The piece itself is enjoyable and, in my view, does a nice job not only of describing what Brannon calls the New Doctrinalism but responding to some of the early criticisms of this school, including those by our own Rick Hills.  And naming something can be a very powerful thing, for the namer and the named alike; how else do you think someone gets to be Archmage of Earthsea?  

I have two thoughts about this article and its project.  The first is to wonder whether I am indeed a New Doctrinalist.  The deference piece was part of a larger project of thinking about First Amendment institutionalism.  Although the deference piece was indeed a work of constitutional implementation, and took some pains to draw a connection between that project and First Amendment institutionalism, some might wonder whether the institutionalist project itself is accurately labeled as part of the New Doctrinalism.  In some ways it is, I think; it focuses on the institutional turn as a better way of shaping First Amendment doctrine than using the existing doctrine, but it is still a way of thinking about how the courts should implement the First Amendment, albeit the answer is that they should often do so by getting out of the way.  On the other hand, that difference is not unimportant.  Some New Doctrinalists think in terms of clarifying or improving or understanding existing doctrine.  Others, including me and, I dare say, constitutional experimentalists like Mike Dorf and advocates of tailoring like Mark Rosen, think in terms of reshaping the courts' overall approach so that it is less reliant on imperfect, one-size-fits-all doctrine and more responsive to the particular needs and norms of various public and private actors.  It is certainly a form of implementation, but it's one that is more interested in how law gets shaped outside the courts than in the (quixotic, in my view) project of trying to perfect doctrine itself.  My deference piece suggests that we can think of the institutionalist or experimentalist project as being closely linked with the implementation project, and that both schools of thought should be aware of one another.  But it may be that the differences between the two offer food for further thought about different ways of thinking about the relationship between implementation and doctrine itself.

The second thought is a little more playful.  Brannon gets the naming rights here, and he's come up with a pretty good name.  (I think of Shakespeare in Love: "Good title!")  Do we have any other volunteers, however?  What else might be a snappy name for the school of thought Brannon identifies, with or without the institutional piece?  Some people have referred to it already as constitutional decision rules theory.  That's nice, but it doesn't have capital letters.  The New Doctrinalism has the crucial caps, but it's a close call whether being identified with doctrinalism consigns us to the mockery of folks who think doctrine is dead and that real law professors don't write treatises, or whether the very act of reviving something that everyone has been mocking for years gives us a leg up in the novelty and counter-intuitivism department: maybe the best way to be ahead of the curve is to be really far behind it!

Here are some alternative suggestions: Implentarity.  The New Relevance.  The Theory-Smashers.  The Desert Foxes of the Real.  The Moss Gatherers (a nice one, since it helpfully distinguishes us from Mick Jagger; I hear Fallon gets mistaken for him all the time).  The New New (New) (New, Damn It!) Legal Process.  Let me also suggest, although I understand they're taken, either the Jets or the Sharks.  They're less descriptive, but either name would look really keen on the back of a leather jacket.

Other suggestions, genuine or fanciful, anyone?     

Posted by Paul Horwitz on March 18, 2009 at 11:24 AM in Paul Horwitz | Permalink


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Paul, these -- and all other -- questions about "the new doctrinalism" will be answered, I am sure, at the Program of the Section on Constitutional Law, at next year's AALS meeting! And, in case anyone missed the announcement, here's a call for papers:


Posted by: Rick Garnett | Mar 19, 2009 7:21:08 AM

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