Like living things, legal theories are born, grow, change, and die. We are joined by Jeremy Kessler and David Pozen to discuss this life cycle and how it applies to some popular theories today, like originalism. We start by discussing what prescriptive legal theories are and how there was a move to transcend politics through process-based theories (3:23). Then: the theory of theories (9:31), the example of Brown v. Board, originalism, and brute political facts (20:17), a sociological story (25:10), the role of law schools and teaching in theory evolution (31:22), a discussion of trees, structure, and the role of higher order principles in law (37:50), theory change in private law (47:14), normative vs. descriptive theories of theories (54:05), and the internal and external approaches to originalism (1:04:27).

This show’s links:

Jeremy Kessler’s faculty profile and writing
David Pozen’s faculty profile and writing
Jeremy Kessler and David Pozen, Working Themselves Impure: A Life-Cycle Theory of Legal Theories
Oral Argument 97: Bonus
Lawrence Solum, Kessler and Pozen on the Development of Normative Legal Theories
Lawrence Solum, Legal Theory Lexicon: It Takes a Theory to Beat a Theory
Daniel Carpenter, The Forging of Bureaucratic Autonomy:Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928
About Lévi-Strauss’s structuralism
Javins v. First National Realty Corp.
Jeffrey Gordon, The Empty Call for Benefit-Cost Analysis in Financial Regulation
Guido Calabresi and Philip Bobbitt, Tragic Choices
Open Science Collaboration, Estimating the Reproducibility of Psychological Science
S.J. Gould and R.C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme
Lawrence Solum, Legal Theory Lexicon: Originalism and Legal Theory Lexicon: The New Originalism (each containing links and citations to many of the key works)
Stephen Smith, Saving Originalism from Originalists
An example of Larry Solum’s April Fools jokes
Special Guests: David Pozen and Jeremy Kessler.