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Thursday, June 29, 2017

Treat the Disease or Treat the Symptoms?

I have blogged previously about how interdisciplinary developments in legal scholarship have affected the types of law review articles that are being published.  One of the dimensions of this that I did not address previously is something I want to expand on in this post.

Consider the traditional law review article:  the underlying legal problem to be fixed is identified, with all of the attention of the article then turning to the normative prescriptions.  A different type of article has started to become much more common.  Before turning to normative prescriptions, there is an account of how new, underlying mechanisms have generated the new legal problem.  That new legal problem is then addressed as presenting normative problems undermining generally shared institutional design goals.  While the past article simply identified a problematic situation, the new article also engages with the triggers for that situation as well. 

What does this new step (not just problem and solution, but cause for problem, then problem, then solution) mean for the forms of legal scholarship? This new style of article identifies an underlying, structural problem (the “disease”) and the problematic manifestations of the problem (the “symptoms”).  This style therefore poses the question of whether to treat the disease or treat the symptoms. If you treat the disease, the article must address how the underlying mechanisms causing the problem can be changed.  This requires a causal counterfactual.  If underlying mechanism x became underlying mechanism not x, then the new, normatively problematic situation does not exist anymore.  It could be that the normatively problematic situation always existed, so that the underlying mechanism has always existed as well.  The normatively desirable alternative situation is more hypothetical than ever actually having existed.  Given the power of past and precedent as modes of argument legal scholarship, though, the argument is usually that there was a period of time in which the normatively problematic situation did not exist, until the underlying mechanism intervened.  Let’s call this the approach of treating the disease the “Make Law Great Again” solution. 

Alternatively, if you treat the symptoms, you do not target the underlying mechanism.  The goal instead is to mitigate the normative problems generated by the underlying mechanism.  Eric Posner and Adrian Vermeule point out in their article from a few years ago—to rephrase their claim—that treating the symptoms must involve some discussion of how to avoid the disease generating the symptoms in the first place.  Perhaps there are areas of law that are or could be less affected by the underlying mechanism, and these areas of law can be made more significant to treat the symptoms.  If some new feature of tort law is causing some problems, for instance, maybe something in contract law can help instead rather than trying to fix tort law

Normative scholarship does have a methodology, just like the rest of legal scholarship does.  You might not like the methodology, but it has one.  One way of categorizing that methodology is what I suggest in that post: normative scholarship that treats the disease and normative scholarship that treats the symptoms. 

Posted by David Fontana on June 29, 2017 at 02:57 PM | Permalink


Thanks, David. I enjoyed this post. It seems to me that a key difference lies in how ambitious the proposed solution is, which in turn depends on the diagnosis of the problem and the state of the literature on the problem.

If you take the existence of a problem (say, flaws in the peremptory challenge process) as a given, then it makes sense to address its negative consequences in the name of mitigation. If you want to attack it more fundamentally, it seems you would do that rather than try to chip away at it. But this second approach presupposes a lack of recognition of the problem (so, not peremptory challenges, many problems with which I think are reasonably well-known).

Is this a new change? Is it limited to (or even more commonly found in) interdisciplinary work?

Posted by: anon junior faculty | Jun 29, 2017 10:12:38 PM

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