Legal Scholarship and the Nixon Effect
posted by Nate Oman
Legal thinking often seems to be cyclical. Constitutional law scholarship provides (to my ignorant outsiders perspective) a clear example of this. In the 1960s and 1970s the law reviews were filled with articles exalting the role of the courts as guardians of liberty and searching for various jurisprudential philosophers’ stones that would allow the courts to bestow items from the liberal wish list upon the nation e.g. constitutionally mandated rights to welfare payments, etc. The country, however, had the bad manners to proceed along its own political path without reference to the concerns of the legal academy and five GOP presidents to two Democratic presidents later, the federal judiciary is filled with conservatives. Academic panegyrics to judicial modesty and minimalism according sprout like mushrooms. There is, of course, the temptation to see such a cycle in crassly political terms, and perhaps have the bad manners to suggest that left-of-center constitutional law professors are simply modifying their jurisprudential theories in the face of right-of-center election results.
Private law scholarship is also prone to its own intellectual cycles. In the 1970s, Grant Gilmore was confidently predicting the Death of Contract and Farnsworth and his associates were putting the finishing touches on the second Restatement, which confidently set out to deliver us from the horrid formalism of Williston’s work. The gentle establishment liberal sanity of the Legal Process movement seemed to reign supreme, troubled only by the pesky legal economists, whose influence Morton Horton Horwitz assured us peaked in about 1980. Fast forward twenty-five years, and one can read defenses in the Yale Law Journal of formalistic contract interpretation that Williston never imagined of in his headiest pre-Realist dreams. Of course here too, there are crassly political explanations. Flinty-hearted Chicago-school economists are no doubt more attracted to private law subjects like contracts or corporations rather than the intricacies of substantive due process. Furthermore, more than one aspiring conservative legal academic has been advised to go into business law by Federalist Society elders on the grounds that it constitutes a kind of safe preserve for right wingers. Finally, the results at the elections have given ambitious projects for say consumer protection the same surreal feel as articles arguing that the courts should announce a constitutional right to welfare payments. It ain’t going to happen, so why bother?
For all of the fun involved in spinning out political stories to account for the cycles of legal thought, however, there is a simpler academic imperative at work. There is a sense in which young scholars have no choice but to slay their elders. Writing an article saying “amen” to the reigning theoretical consensus is probably not the route to tenure and academic fame. Hence, the discredited ideas of one generation are going to inevitably find their champions in the next generation for the simple reason that no scholar wants to write articles saying “Me too.”
Think of it as the Nixon effect. When he left office the intellectual consensus on Nixon was overwhelmingly negative. Not surprisingly, Nixon’s reputation has risen with time for the simple reason that no one is interested in a new book suggesting that Nixon is a crook, but a book suggesting that Nixon wasn’t so bad after all will get some attention. Not to worry. In the fullness of time, a consensus in favor of a more positive view of Nixon will develop, and some young Turk historian will make his reputation by pointing out that at the end of the day Nixon was a lying, paranoid, un-indicted co-conspirator.
October 19, 2006 at 3:07 pm
Posted in: Constitutional Law, Consumer Protection Law, Contract Law & Beyond, Corporate Law, Law School (Scholarship)
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Responses (6)
horus - October 19, 2006 at 7:25 pm
Spellcheck!
Frank - October 19, 2006 at 7:40 pm
I can understand the “anxiety of influence” you’re suggesting above. But I also feel like a certain degree of deference to certain fundamental presuppositions in a field is the key to progress–or at least “normal science.”
I think that sort of “solidarity” explains the influence of schools like law & economics. Randall Collins has also suggested that such dynamics improve the discourse in philosophy (in the Sociology of Philosophies:
http://www.powells.com/biblio?PID=27627&cgi=product&isbn=0674001877
joe - October 20, 2006 at 12:05 am
You comment succintly highlights the farcical nature of legal scholarship, particularly compared to other academic areas. The favored law articles are often just a fad and a result of the conventional wisdom at the time. True research stands the test of time, or at least is put to rest. Legal theories fade in and out of fancy.
lawguy - October 20, 2006 at 12:27 am
Ironically, most law review articles say “me too!” They agree with what the Yale and Harvard professors say about 99%, and then quibble over the 1%.
Howard Wasserman - October 20, 2006 at 6:32 am
In the con-law context, see Barry Friedman, The Cycles of Constitutional Theory, in Law & Cotemporary Problems in 2004(available on SSRN). Friedman makes the same point as you do in Paragraph 1. He offers suggestions on how to develop theories that avoid these problems–mainly that the theorists must recognize (and take into account) that social conditions/sensibilities might change undereath them.
Miriam Cherry - October 23, 2006 at 12:28 am
Interesting post, Nate (as usual). You might be interested in Cass Sunstein’s “Academic Fads and Fashions” which can be found at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=262331
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