What doctrinal facts drive scholarship?

law-books.jpgI recently had a conversation with an acquaintance about the predicament of con law scholars. He made the point that the decline in the Supreme Court’s docket has had a big impact on con law scholarship. It used to be the case, he said, that the Court was churning out enough new decisions that con law professors could keep busy working out doctrinal puzzles and fitting the new cases into their vision of the fabric of constitutional law. With fewer cases to work on, however, con law professor have to find something else to do.

It got me thinking about how the law influences legal scholarship. For example, right now I am working on a project in contract law. Here it seems to me that one of the main legal facts influencing scholarship is the sheer stability of contract doctrine. It wouldn’t do to over state this, of course. Contract law continues to evolve and new cases come out that try to fit new practices into old categories. Still, thanks I suspect to the success of the Restatements, much of contract law is fixed, and has been fairly fixed for quite some time. Hence, one of the main puzzles is working out why the particular shape that the law has might or might not be justified. There is less interest in figuring out how the Georgia Supreme Court’s latest consideration case fits into the law than in trying to figure out what the basis of consideration might be. Indeed, one of the striking things about contract is that you can read theoretical discussions of contract doctrine from the 1930s and 1940s and in many ways (although not all) the doctrinal discussion doesn’t seem especially dated. There aren’t all that many cases where you read something by Lon Fuller or Morris Cohen and think, “Well that is no longer the rule….”

If con law is characterized by a decreasing flow of cases to write about and contract is characterized by a (relatively) stable set of rules, I wonder what the doctrinal facts driving discussions in other fields might be.

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4 Responses

  1. Jeremy says:

    I am no legal scholar, but I have done a decent amount of research in family law. The constant debate in family law seems to be how to find the best interest of the child. I don’t know of a jurisdiction that doesn’t require all custody and support orders to be based on a best-interest theory, but neither do I know of a single jurisdiction that clearly enunciates what that means. Texas has a seminal case listing factors judges should consider, but family law judges in Texas have enormous discretion.

    Another family law constant concerns property division in divorce. Texas doesn’t require the equal division of property in divorce; rather, the Texas Family Code requires the “just and right” division of marital property. There’s even a case where a court-ordered 90-10 division was held to be “just and right”; while another case held a 55-45 division not “just and right.” Like I said, Texas family law judges have enormous (but not unlimited) discretion.

    Family law, the stepchild of legal scholarship, really does have some interesting debates. The debates in these two issues center around whether and how much discretion the judge ought to have. (Unfortunately for aspiring family law scholars and hot-shot family lawyers, these cases are decidedly less glamourous than their con law/crim law/contract law brethren.)

  2. Bruce Boyden says:

    There’s something like 29,000 federal appellate decisions out there each year; not all of those involve constitutional claims, of course, but how come those aren’t filling the gap?

  3. Paul Horwitz says:

    Bruce raises a good point. I’m not sure I agree with your acquaintance in the first place, but even if he were right, there is ample federal appellate material on which to write, and *if* one of the goals of legal scholarship is to rationalize and give form to an amorphous body of caselaw, which many scholars would dispute, then the reduction in Supreme Court con law decisions would increase, rather than decrease, both the need and the opportunity for such work. And that’s leaving aside the substantial body of important *state* appellate decisions interpreting the Constitution. Even if your friend were right, his statement, to be complete, would have to include an implicit assumption: that the mass of lower court opinions are, to steal a phrase from Underneath Their Robes, just too “ghetto” to bother with. In any event, even if we limited ourselves to the Supreme Court, we’d have to consider not only the number of constitutional decisions issued by the Court (by which, due to the usual subject-matter carve-ups, I suppose I mean non-criminal constitutional decisions), but also the number of separate opinions and, more importantly, the size and scope of those opinions.

  4. Trevor Morrison says:

    I agree with Paul’s points. But in addition, even if a scholar were inclined to focus only on Supreme Court decisions, the overall decrease in Supreme Court cases each year doesn’t really tell us much. Back when the Court was decided 150 or more cases a year, it’s not like scholars were writing about each of those cases. Rather, whatever the size of the Court’s overall docket, it was always a small handful of cases per year that attracted the vast majority of scholarly attention. So, assuming arguendo that one were inclined to write only about the big doctrinal puzzles created by the Court, the question is not whether the Court’s overall docket has shrunk, but whether the number of big ticket cases per year has decreased. I don’t think it has.