In a Rut

Does legal thought ever feel a bit circular? Debates about textualism and purposivism, or originalism and living constitutionalism, or efficiency and fairness, or even rules and standards all seem to occur over and over. And many of these debates trace back to a specific period—the 1970s and ’80s.  

Imagine studying law during the era of nineteenth-century formalism, or the realist period of the interwar years, or the postwar dominance of the legal process school, or the 1970s rise of law and economics and critical legal studies. Maybe I’m projecting onto the past, but it seems to me that there would have been a much greater gap between legal thought in any two of these periods than there is between today and, say, 1990 (of course, the extracurricular experience has changed significantly). 

Perhaps this is innocuous. There are plenty of disciplines, especially in the social sciences, where the foundational work was done around the ’70s and ’80s, with later scholarship building on it. In law, for example, first-generation law and economics came about around this time, and it is undoubtedly foundational to later work. 

But legal scholarship is influenced by social forces to a greater extent than other disciplines. We hope that economics, philosophy, or chemistry develop according to the search for truth—or more prosaically, according to norms internal to the scholarly profession. But politics and judicial rhetoric help determine the course of legal scholarship, as do the culture and market forces of the legal profession outside the schools. Are there structural forces that chain legal scholarship to the past? 

For one thing, law professors are old, even relative to other disciplines. Today, this comes from the expectations for new hires, which may include PhDs, practice experience, and one or more clerkships and fellowships. But it stems more fundamentally from supply and demand. Law schools expanded dramatically in—you guessed it—the ’70s and ’80s, more modestly in the following decades, and much less so after 2008. This means that disproportionately many law professors, especially the most senior and influential, started their careers around the ’70s and ’80s, just as these debates emerged. And some of them hang on; being a law professor is good work if you can get it. 

Then there is the influence of judges. So much of legal scholarship, even now, is commentary on what judges write in their opinions. And judges are old, even older than law professors. Not to mention that judges are appointed for their ability to follow precedent (or the ideologies of their appointers) more than their originality. Moreover, clerkships produce a selection effect on scholars. Clerkships are a major credential for new professors, and prominent appellate or Supreme Court clerkships are particularly important in the competitive fields of legal theory and constitutional law (and clerkships were even more important in the past, before some pressure shifted to PhDs and fellowships). Ideological agreement is certainly not everything, but judges and clerks select each other at least in part for like-mindedness, especially at the high levels. That must lean legal scholarship towards the views of judges. And with the judicial appointment process being much more partisan and organized than in the past, views that are established among the political movements that govern appointments remain in circulation. 

An interesting project for an empirical legal scholar with a knack for textual analysis would be to see how age influences the content of law review articles. Is an article published today by an older author meaningfully more similar to articles and opinions from the time that author began their career than is an article by a younger author? Do the preoccupations of a judge imprint on a young clerk, recurring in articles decades down the line? 

Perhaps some trends will produce a real paradigm shift in legal scholarship. The remaining professors who emerged in the ’80s are retiring or dying off. The ongoing shift to interdisciplinary research done by PhDs dislodges legal scholarship from the assumptions of the legal profession and ties it to trends in the other disciplines. Or some great political realignment could change our legal culture and scholarship with it. 

Until that happens, we can look forward to more of the same.