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Wednesday, November 04, 2015

What Law Could Learn From Popper’s Model of Science

There is a problem with modern legal scholarship.

There is a genre of legal scholarship which cries out to be written, but it is not written, or, at least, it is only produced intermittently. Their would-be authors fear sending such articles to journals: they fear that their scholarship will be left as unwanted orphans because no venue will publish them.

What class of article is that? Articles which pose questions without proposing answers; articles which only seek to start a line of new inquiry, but do not offer guidance or theories in regard to how to resolve the underlying issue.

The world of science used to (and still may, for all I know) have such articles. Scientific articles would publish empirical data falsifying the current theoretical wisdom. When a new theory was put in place, its progenitors might be people other than those who had brought down the prior wisdom.

Sometimes the new wisdom is put in place by those who brought down the old. But there is no strong need for the two tasks—(i) smashing the old idols, and (ii) installing the new faith—to be interlinked. It is a perfectly reasonable scholarly accomplishment merely to show that the old wisdom has failed—even absent a better, newer theory. But law lacks such scholarly articles—law lacks articles whose primary goal is to falsify and to destroy. See generally Karl Popper, The Logic of Scientific Discovery (circa 1934). 

By way of example, consider Article I, Section 8, Clause 1. It states:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States ....

Now compare Article I, Section 8, Clause 1’s language to ...

Enumeration Clause: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”


Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators.”


Annual Meeting Clause: “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”


Compensation Clause: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”


Appropriations Clause: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ....”


Succession Clause: “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”


Appointments Clause: “[The President] shall have Power ... by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Twice!: in a single sentence.)

               and, finally,

Criminal Trial Venue Clause: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Unlike Article I, Section 8 and every other clause in the Constitution, here the specific clauses listed above use by Law language. Why? And if our goal is to understand, then why don’t we have a ready group of scholarly articles opening up this textual issue, even if those articles do not come up with a new, reliable answer?

Is this language a mere redundancy? Committee of Detail & Committee of Style—were all the members really such slackers? Or were they doing something that we (today) don’t understand, don’t want to discuss, and don’t want to discover? And because we don’t want to discover what we don’t already know, we don’t take on the difficult task of investigating anew and reconsidering so-called first principles and original understandings.


PS: Seth Barrett Tillman, The Decline of American Martial Culture—Flies of a Summer (Part III), New Reform Club (Oct. 23, 2015, 8:23 AM),

Twitter:  ( @SethBTillman )


Sardonicus said...

How much research did you do into legal scholarship before you wrote this piece. I am not at all sure that legal scholarship in such questions is lacking.

Seth Tillman said...

I would be most grateful to be proven wrong. Go out and find an example which falsifies my position.

As for my investigations, why yes, I have researched it.


Fat Man said...

Law isn't science. And, law profs aren't scientists. Law profs write law review articles to get promotions and raises. Nobody reads them except the authors's mothers. Real lawyers haven't looked at law review articles since Hector was a pup. The solution is to shut down 100 law schools, fire a couple thousand law profs, and stop publishing law reviews.

Chris said...

There are, to me, obvious qualitative differences in the sections. Section 8 enumerates the powers vested in the congress; basically defining the kinds of laws they can enact. Your instinct is right that saying you can write a law "by law" is not just weirdly redundant it would be circular logic. It is the constitution not just some "law" that delegates the powers to congress. The clauses in section 9 assume that the powers have been enumerated and that there are specific government functions that need to be performed. Some functions are assigned to the states by default and can only be changed under the procedural safeguards of "by law" the process of which is specified in section 7. Other functions like withdrawing money from the treasury must also require the bright light of public legislation lest corruption run [more] rampant.

I see no real paradox here. But I'm glad that people are thinking long and hard about constitutional structure and perhaps wondering why it is we've strayed so far.

Anonymous said...

There are dozens and dozens of articles listed in Westlaw relating to an Originalist interpretation of the Constitution and over 10,000 dealing with language in state and federal constitutions. This being said, most of these have absolutely nothing to do with with the practice of law and Law Reviews in general are almost completely useless to practitioners who labor in the trenches of criminal and juvenile courts.

Ed Brenegar said...

Your commenters' comments prove your point. I see its validity in a more broad based way everyday. Today, intellectual thought is primarily advocacy (marketing) for the purpose of closing off consideration of ideas. Why? Because it serves the purpose of positioning for political influence. I think you are onto something here. Why? Because I am convinced that a new generation of truth discoverers are emerging in the quiet of their own intellectual pursuits, because the political advocacy of ideas is bankrupt.

Tim Kowal said...

Like Chris, my first impulse -- and second, and third, &c. -- was to try to close the loop. The suggestion that this might be misguided, that it might work to the exclusion of a more enriching inquiry, does seem to me, I confess, foreign and discomfiting. Like Mr. Brenegar, I think Seth is onto something, but finding myself alien to this new and different proposed way of thinking, I cannot say what.

You have my attention.

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