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Monday, May 13, 2013

Sunstein on Albert Hirschman

In the new New York Review of Books, Cass Sunstein has a very enjoyable essay on Albert Hirschman, jumping off of a recent biography. Hirschman's classic book Exit, Voice and Loyalty is well known to legal scholars, with some 870 cites in the Westlaw legal periodical database (including a good new piece by Heather Gerken in the Duke Law Journal). Indeed, I assume many of the authors who cite it have actually read the book! But Sunstein usefully shines a spotlight on other major works by Hirschman, which seem like natural reads for legal scholars but have gotten less attention from them. (In particular, Shifting Involvements, which has 54 cites, and The Rhetoric of Reaction, "a study of the reactionary’s tool kit, identifying the standard objections to any and all proposals for reform," a subject of central concern to much reform-oriented legal scholarship, which has only 84 cites.) 

I found the following passage from Sunstein's celebratory essay especially valuable:

Hirschman was a great believer in doubt—he never doubted it—and he certainly doubted his own convictions. At a conference designed to celebrate the thirtieth anniversary of his first book, who else would take the opportunity to show that one of his own central arguments was wrong? Who else would publish an essay in The American Economic Review exploring the “overproduction of opinionated opinion,” questioning the value of having strong opinions, and emphasizing the importance of doubting one’s opinions and even one’s tastes? . . . [Hirschman suggested] that doubt could be a source not of paralysis and death but of creativity and self-renewal. One of his last books, published when he was about eighty, is called A Propensity to Self-Subversion. In the title essay, Hirschman celebrates skepticism about his own theories and ideas, and he captures not only the insight but also the pleasure, even the joy, that can come from learning that one had it wrong.

This sounds, alas, like the exact opposite of the behavior and incentives of junior legal scholars (and too many senior scholars) today, as well as the law review editors to whom they often cater. I've complained here before about the apparent rise of excessive novelty claims in recent legal scholarship, including articles published in many leading law reviews, which in turn will only encourage that trend. Too many articles today claim, on dubious grounds, to be the "first" or "only" paper to consider some issue or make some argument. Combine that with the frequency of "unified theory" approaches in legal scholarship and the general overconfidence that prevails in the field, and you get a lot of hubris. Some of this is surely strategic; I've heard privately from various scholars who acknowledge that their articles and abstracts overclaim but swear they'll cut out those claims by the time the article has been accepted and moved into the editing process, a move I find questionable as an ethical matter and one they don't always follow through on anyway. But much of the hubris is genuine, and even when it's not it's still there in the articles and may leach into the writer's thinking. 

It's possible that this is just a particular phase in the life-cycle of these scholars, just a function of brash youth and careerism, and that they will think better of it when they get older and wiser. Having built their careers on an insistence that they have offered a "new" and/or general theory, however, I fear that these scholars will only get older, not wiser, and that they will be boxed in by their earlier claims and by the trend in legal scholarship that they helped to encourage and benefited from. How many of them will come back to the work that launched them and consider whether it was wrong? If they do, will those sober second thoughts be prominently published, or noticed at all?

As a personal note, I should add that I have been guilty too, not so much of overclaiming as of providing sweeping general theories and approaches. And yet, the most fun I've had in my work recently has been on two pieces. One gives a more positive assessment to the use of equality in law and religion doctrine, about which I've been skeptical before. The other is a clinical and critical examination of "freedom of the church," of which I've written quite positively in several articles. Any idea worth championing is surely worth going back and reconsidering critically. Indeed, I would think a serious scholar has a positive obligation to reconsider and sometimes disclaim his own past work. I worry that the pace, structure, and incentives of legal scholarship don't much encourage this. Perhaps Ross Davies could start yet another legal journal, this one called "The Journal of Law and Second Thoughts."   

Posted by Paul Horwitz on May 13, 2013 at 08:42 AM in Paul Horwitz | Permalink


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