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A Life Cycle Theory of Legal Theories I

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Sort of a meta-theory of law. I like those.

Jeremy K Kessler and David Pozen, both of Columbia Law School, have posted Working Themselves Impure: A Life-Cycle Theory of Legal Theories, which will soon be published in the  University of Chicago Law Review.

I learned about it in the Legal History Blog, which I believe I've mentioned here before, and which once in awhile references my work in The Federal Lawyer.

The life-cycle theory is this: "Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure."

That's the abstract. Here's a quote from the article, about why they limit that statement to prescriptive legal theories:

"All that we have said so far concerns prescriptive legal theories; what of their descriptive counterparts? To the extent that any legal theory can be considered purely descriptive, we suspect that it will prove relatively impervious to the life cycle. Because such a theory will not seek to dictate particular legal outcomes, it will have less of a need to expand its constituency and will be less likely to receive pushback from the many parties opposed to those outcomes."

One of the examples that Kessler and Pozen have posited is the invocation of cost-benefit analysis as a prescriptive legal theory. Although the phrase had a variety of meanings going back to the days of classical utilitarianism, what they mean by CBA is primarily this: the early Reagan administration ordered agencies to monitor all their own actions by whether "the potential benefits to society ... outweigh the potential costs."

Meanwhile the law-and-economics movement in academia was applying the same quantitative/balancing idea to judge-made law.

But as to the working-itself-theme, our authors write:

Over the course of the 1980s, actual administrative practice would frustrate this idealized model. An “atmosphere of scandal” thickened around the Environmental Protection Agency in particular, as rumors swirled that the President’s Office of Management and Budget (OMB)—responsible for oversight of the CBA initiative—had “illegally delayed EPA promulgation of regulations” and “subverted statutory standards.” Mass resignations followed in 1983, and the new Administrator, brought in to restore public confidence, fared little better.

In response to such challenges, CBA began working itself impure. I hope to pursue the Kessler/Pozen point a little further in a post next week.
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