Legal Commentary

I started to write another comment to Dave Fagundes' interesting post on puzzle and prescription papers, but decided it deserved separate billing.

Just to review the bidding, the question is whether it's really the rule that all law review articles "must" have a normative, prescriptive coda (meaning that most turn out to be "prescriptive" rather than "puzzle" papers).  What Dave's wise mentor advised certainly (and anecdotally) strikes me as the conventional wisdom, because that's exactly what an old friend (law school classmate and former elite school dean) told me when I showed him the first piece I published.  My intuition is that this conventional wisdom is akin to the conventional wisdom on cross-examination techniques:  don't ever ask a question to which you don't know the answer.  That is advice designed to ensure that you never make a mistake, but the downside is that there are, indeed, times when experienced cross-examiners can ask questions whose answers they don't know, and following the conventional wisdom means you lose a great opportunity.  (For example, you can ask a question in which either possible answer works for you.)

My other intuition is that conventional wisdom generally arises out of community norms, which may or may not have anything to do with "truth-seeking" of pure inquiry.  Dave suggested maybe it was naive to strive for the ideal of pure inquiry, but I don't think it is (in a qualified way).  The distinction between regulative processes and constitutive processes is helpful here.  (My inner Kant is showing through.)   What we can recognize is, in terms of what we are ever going to know substantively (that is, "constitutive knowledge"), that we are hung somewhere between foundational truths and pure skepticism, and having to observe the objective world from a subjective standpoint.  Substantively, you can swing to the dogmatic side of things, and accept "normative" principles as TRUE foundationally, and you have to deal with the fact that others are going to take your assertions as faith-based or brute or unprovable or unreasoned.  Or you can swing all the way to the other side, and refuse to accept any normativity as TRUE foundationally, in which case you qualify as a Crit or maybe a pragmatic skeptic (that's how Richard Posner describes himself), but you still have to account for the intuitions of foundational truth. 

I know that my own thinking and writing has been described back to me as "wide-ranging," "wild," "layered rather than drilled," to which my response is that I try to walk the fine line between "wide-ranging" and "shallow."  It just doesn't strike me that what I really want to figure out about the world (being, as I am, an introspective sort) is defined by the norms a particular academic or professional community has put in place (notwithstanding the impact this has on an academic career, which is another factor in all of this, and something I'm somewhat less affected by).  I mean, think about Kuhnian paradigm, or the Luhmann critique of law as autopoietic (i.e. self-contained and self-generating).  This is, of course, the problem with cross- or inter-disciplinary work.  Is it wide-ranging or shallow?  Do you have to have an advanced degree in both disciplines to be qualified?  But if you have the advanced degrees, aren't you co-opted by the community norms and hence really not inter-disciplinary?

Pure inquiry of the kind to which Dave aspires strikes me as a concept not of pragmatic skepticism, but of pragmatic idealism, which tries to mediate between the fact that some things seem to be incapable of resolution except by brute acceptance and sinking into utter indeterminacy.  The best response I can come up with is some form of regulative process - reflective equilibrium (Rawls), reasoned argument, discourse (Habermas), or some such.

NORMATIVE, PRESCRIPTIVE CODA:  The world would be a better place, lawyers would be happier, human flourishing would be enhanced, and better and more ideas would be generated if the legal academy reflected on the community norms that suggest law review articles have normative, prescriptive codas.