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Monday, May 15, 2017

The Under-Theorization Paradox

The "under-theorization" paragraph has become a standard move in article introductions. To explain why editors and readers should value a law review article, many authors include a paragraph pointing out that the issue has not received enough attention or is "undertheorized," whatever that means.  The phrase's proliferation has led to posts discussing undertheorization.  We even have a law review article on the Under-Theorized Asterisk Footnote.  A quick Westlaw search reveals that undertheorized or under-theorized has appeared in 1,982 law reviews.  The number stood at about 11,00o in 2012.  In books, the term first began showing up in the 1980s and its popularity has grown steadily. 

Yet supporting an undertheorization claim may undermine an undertheorization claim.  If you want to show the reader that your article addresses an under-theorized area, the usual proof may cast doubt on your claim.  For example, I believe that the academic literature does not examine industry self-regulation enough.  For support, I turned to others making similar claims:  

Jonathan Macey & Caroline Novogrod, Enforcing Self-Regulatory Organization's Penalties and the Nature of Self-Regulation, 40 Hofstra L. Rev. 963, 963 (2012) (“[f]ew issues are as poorly understood and under-theorized as the concept of ‘industry self-regulation’”); Andrew F. Tuch, The Self-Regulation of Investment Bankers, 83 Geo. Wash. L. Rev. 101, 105 (2014) (explaining that FINRA’s “self-regulation of investment bankers has thus far attracted scant scholarly attention”); Saule T. Omarova, Wall Street As Community of Fate: Toward Financial Industry Self-Regulation, 159 U. Pa. L. Rev. 411, 414-15 (2011) (“what is conspicuously absent from the . . . broader debate among academics and policy-makers, is a meaningful discussion of the role and shape of industry self-regulation in the emerging postcrisis regulatory order”).

Evidence for the claim that little attention has been paid to industry self-regulation comes from other articles about industry self-regulation. While we're all correct about the need for closer attention to industry self-regulation, marshaling evidence that an area needs more attention may—at some point—cast doubt on the claim.  

This is the under-theorization paradox:  as claims that not enough people write about an area accumulate, the likelihood that an area actually needs more academic attention declines. 

Posted by Benjamin P. Edwards on May 15, 2017 at 08:07 PM | Permalink


I think Bruce's comment captures the two significant elements of theoretical explanation generally: that the explanation corresponds to the empirical observation (how X came to be) and that the explanation is coherent (how all the pieces of X are supposed to fit together).

As applied to the normative exercise that law (or better put, lawyering) tends to be, suggesting that one can "theorize" about it entails making a number of assumptions about whether there is something to correspond to or that coherence is meaningful. In a field about which I know a little bit, as an example, many theorists about contract law simply assume that there is a there there - that there are "true" answers. And it seems to go, often largely without question, that the doctrine is or ought to be "coherent" - i.e. all fit together.

That whole subject is relatively under-theorized. (That's a joke.) That's why I wrote the most significant written about it in recent years (that's also a joke).

Posted by: Jeff Lipshaw | May 18, 2017 8:08:55 AM

I don't believe I've ever used the term "under-theorized," precisely because I don't have a good sense of what the optimal amount of theorization is for any given topic. But if I were to use the term, it would mean something like, "Given how important Doctrine X is, it's somewhat surprising that very few people have tried to reason through in a rigorous way how X came to be the way it is and how all the pieces of X are supposed to fit together. Here's my attempt."

Posted by: Bruce Boyden | May 17, 2017 1:47:54 PM

Orin: whether something is "adequately theorized" is doubtless in the eye of the beholder, but what I mean is the basic notion that a literature already exists theorizing the topic. The Erie doctrine is one example. To be sure, much remains to be said about it, but theoretical accounts and take-downs of Erie abound. We have a theory (multiple theories) of Erie. One could say the same for capital punishment, insider trading, negligence vs. strict liability, and many other topics. That's not a value judgment, of course.

Posted by: anon | May 17, 2017 12:56:02 PM

This is the War Games demonstration of "over-theorized":

General Beringer: Major Lem, get me a report on the WOPR.

Major Lem: Initial attack profile is a full-scale Soviet strike. WOPR is putting our losses at 85 to 95% of the strategic forces.

General Beringer: What does WOPR recommend, Mr McKittrick?

McKittrick: Full-scale retaliatory strike.

General Beringer: I need some machine to tell me that?

Posted by: Jeff Lipshaw | May 17, 2017 8:12:21 AM


Can you say more about what it means for something to be "adequately theorized"?

Posted by: Orin Kerr | May 16, 2017 9:13:31 PM

When you look more closely, it turns out that a lot of things genuinely are undertheorized. This will sound horribly self-serving, but I don't think I've written about anything that's been adequately theorized. I borrow from cognate areas, of course, to help build a theory. Are people reacting to the claim or the term? That it is clickbait does not render it inapt.

Posted by: anon | May 16, 2017 1:29:28 PM

How about over-theorization? Has anyone examined that term and phenomenon, and any associated paradoxes?

Posted by: Paul Diller | May 16, 2017 12:51:56 PM

A useful source for anyone looking to cite to something for the proposition that their subject is under-theorized: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2928263

Posted by: JLS | May 16, 2017 10:22:18 AM

In Chapter 3 of Beyond Legal Reasoning (https://www.routledge.com/Beyond-Legal-Reasoning-a-Critique-of-Pure-Lawyering/Lipshaw/p/book/9781138221307), entitled "Assessing Theory-Making," I have an extended discussion of what it means to "theorize" in the practice and academics of law.

Note 55 on page 58 reflects data consistent with yours: On March 8, 2016, when I did the Westlaw search for "undertheorized" and "under-theorized," I came up with 1,864 results. The first appearances of either term appear to have been in 1987 from David Kettler in Law & Society Review and Milner Ball in the Northwestern University Law Journal.

Posted by: Jeff Lipshaw | May 16, 2017 7:15:11 AM

I think the undertheorized claim is another way to say, "I concede that others have written a lot about this topic, but they didn't do it in the same way I will here."

Posted by: Orin Kerr | May 16, 2017 12:32:06 AM

This is great: quantum theorization - if you observe it, it is no longer under-theorized. A true catch-22.

My answer is that if it is truly undertheorized, you won't have a cite. You might cite to a bunch of articles talking about the problem, but you can't have a cite talking about the solution...at least not your solution.

Posted by: Michael Risch | May 15, 2017 8:54:03 PM

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