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Thursday, September 19, 2013

Maps and Doctrinal Scholarship

In my last post, I looked at  SCOTUS Maps in the classroom. My basic suggestion was that maps could help 1L students "find their way into" otherwise befuddling topics like FRCP 8 pleadings doctrine. Using the slideshow function, the mapper software allows law teachers to introduce complexity at a pace, and in a sequence, tailored to an audience just beginning to learn the law.

In this installment, I consider how maps might help facilitate conversations among more sophisticated audiences -- those engaged in serious doctrinal scholarship. Once again, the software's payout comes in its ability to visually represent complexity. This time around, however, the complexity we're talking about is very complex. For scholars who like to trudge deep in the doctrinal weeds, maps can provide a neat way to present an information-dense snapshot of their arguments. 

Let's jump right into an example. The map below attempts to capture the complex argument advanced by Jennifer Laurin in her insightful and compelling 2011 article Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence


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In her article, Professor Laurin argued that the doctrinal roots of the Court's 2009 Herring decision traced back not only to exclusionary-rule jurisprudence (Herring was a 4th Amendment case) but also to certain lines of constitutional tort and qualified immunity opinions. Building on Professors Tebbe and Tsai's vital work on constitutional "borrowing", Laurin introduced the novel concept of "convergence" -- where two otherwise distinct doctrines start to align after an initial cross-fertilization. After applying the convergence concept to explain certain peculiarities in the Herring decision, Laurin further suggested how borrowing and convergence can enrich our understanding of the "hydlaulics" of doctrinal development.

To be clear, Professor Laurin herself did not author the map above. I made it to help me understand and critique her important work.  So I do not pretend that this map captures the full richness of Laurin's extensive analysis. Rather, it simply charts the essentials of her genealogical account of Herring's mixed lineage and brings into a single frame the major opinions from exclusionary-rule and consitutional-tort lines. It can serve as a general reference and quick illustration of Laurin's argument that, beginning with Justice White's invocation of Harlow in Leon, the two currents of doctrine have swirled forward together. Perhaps more interestingly, the map also graphically represents Laurin's metaphor of doctrinal hydraulics.  

As I said before, the intent of this blog seies is not to delve into the substance of the doctrinal arguments portrayed. (I'd be happy to do that in another forum if anyone was keen). Rather, the idea is just to highlight the potential of the mapping technique as a way to frame scholarly arguments about doctrine. So let's briefly consider a different doctrinal claim to further flesh out this idea. This time the example concerns the Court's "incorporation" jurisprudence.  

Readers may recall that incorporation refers to the doctrinal trick that allows the Court to apply the protections of the Bill of Rights against the States. Of course, the Court had found in 1833's Tiernan v. Mayor of Baltimore that the Bill of Rights only protected citizens against the federal government. Not the States. Eventually though, the Court found that most of the Bill of Rights protections could be applied to the States via the Due Process Clause of the Fourteenth Amendment. Thus, incorporation is essentially a substantive due process doctrine. And one that was deeply controversial on the Court and in the academic community from the 1940s through the 1960s.

How did the due process incorporation theory come into the Court's doctrine?

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This first incorporation map tells one version of the story. It is, in fact, the version of the story that I have previously defended. In this version, Justice Black's dissent in Adamson v. California is the most important ancestor to contemporary doctrine. Though Black was certainly inspired by the first Justice Harlan and his remarkable victory in Chicago B&Q, it was Black's majority opinion in Gideon that truly marked the the Court's adoption of the incorporation theory.

Of course, this version of the story can be contested. Consider then an alternate take:


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The primary difference in this second version is Mapp v. Ohio's starring role in the incorporation story. Given that Mapp was decided two years before Gideon -- and that Justice Black in Gideon and Justice Brennan Malloy both relied on Mapp in their incorporation analyses, the argument could be made that Mapp was the transformative case. On this reading, 1952's Rochin v. California also assumes a doctrinal signficance.

(I still reject this second interpretation. This is mainly because Justice Clark did not write a word about incorporation in Mapp and then Clark clearly later sided with the second Justice Harlan is his anti-incorporation campaign. Even though Black's Adamson dissent was not directly cited in subsequent majority opinions, it continues to strike me as a far more important opinion in effecting doctrinal change than Mapp). 

 Once again, the point is not to dwell on the substantive merits. Instead, I hope to empasize how two two different maps of the same territory can help tease out competing perspectives on the true origins of the Court's doctrine. This same method naturally could be applied to different genealogical disputes to help illustrate the divergent views of scholars. By using a common visual vernacular, scholars could usefully compare their competing pictures of contested doctrines.

Well, this wraps up this installment. It is also the last post in which I'll elaborate on the theory behind the mapping software and method. In my final couple of posts, I'll take a more practical tact and describe the future of the project as I see it. I'll also give some concrete details on how interested folks can become involved. Of course, I remain very open to suggestion and always appreciate Reader feedback. Thanks for your time! 

Posted by Colin Starger on September 19, 2013 at 11:06 PM | Permalink


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