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06/18/2017

Charles L. Barzun Responds to Kessler & Pozen's "Life Cycle of Legal Theories"
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted Working for the Weekend: A Response to Kessler & Pozen on SSRN.  Here is the abstract: 

In Working Themselves Impure: A Life Cycle Theory of Legal Theories [ed.: available here], Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.