Legal Commentary

When I was first preparing to go on the teaching market, a wise elder told me that all law papers had to answer the question ?what should I do?? In other words, she said, the sine qua non of a legal academic paper is that it must conclude by stating some normative prescription. This comes as a surprise to no one, I suspect. After all, the point of our writing (I think most lawprofs would say) is to identify some problem in the law, and then to make some claim about how it can be made fairer, or more efficient. And I?d wager that the strong majority of law papers conclude with some kind of prescription about how the world should be. There are so many examples that I don?t feel it?s necessary to provide one.

Later, though, I spent a couple years as a fellow at an august institution in a cold, gray part of the Midwest, and noticed that many of the faculty there took a very different approach to what law papers should be. The idea was to start with some puzzle in the law, and then find a novel and convincing explanation for it. Why does a strong state like the U.S. enter into binding international agreements rather than opting for negotiation regimes? Why do laypeople continue to believe that property rights are nearly absolute when lawyers and law scholars have emphasized the limited nature of ownership since (at least) the advent of legal realism? Why are we bothered by non-negotiable boilerplate provisions when so many other aspects of sold products are hidden or otherwise stacked against consumers? The solutions to these puzzles may lie in game theory, or law and economics, or behavioralism, but regardless of the particular answer, the goal remains the same: to develop a convincing and parsimonious explanation that shows how these seeming contradictions can be resolved.

I find both puzzle and prescription papers valuable and interesting, and each of them has a place in my past and current writing agenda. My sense, though, is that the puzzle paper gets short shrift in the mainstream legal academy, where the normative prescription is king. Below the fold, I say a few words in praise of the puzzle paper, and (perhaps more provocatively) why answering the question ?what should I do?? need not be the sine qua non of legal scholarship.

First, while the puzzle paper is the exception rather than the rule in legal academia, it?s more the norm in many (perhaps even most) other fields. I recently chatted with a friend who did graduate study in physics and her take was that there are really only two kinds of papers in science: those that seek to propound a theory explaining some phenomenon, and follow-on papers seeking to amass evidence proving or disproving that theory (e.g., Einstein?s theory of relativity and the body of work following that showed its validity). In an elemental sense, this is the goal of scientists: to explain how the world (or their chosen slice of it) works. And this puts into perspective the function of puzzle papers in our field: they seek to help us more fully understand why the legal world is the way it is.

Moreover, puzzle papers often seek not only to resolve the particular dilemma they identify, but to do so by showing how a particular theory about the law does the best job of providing an explanation. By showing that [choose one: L&E, behavioralism, Foucauldian power theory] best resolves a given contradiction in the law, you have provided some evidence that the operative theory is a good one because it has lots of explanatory leverage. I often think that this is often the major punch of puzzle papers; they exist not only to help us understand an otherwise unexplained phenomenon, but more so as an object lesson in why the writer's chosen worldview is the best way to understand the domain of law.

Colleagues who have expressed skepticism about the relevance puzzle papers typically suggest that they are academic exercises in the worst sense of the phrase: they seek merely to propound an answer to a question that lacks any meaningful practical implications. After all, one of the main draws of legal scholarship is that it?s not mere navel-gazing; the insights of a given paper may trickle down to actual lawyers, judges, or policymakers, and affect the way they interpret or apply the law. This is certainly possible, and indeed happens all the time, but on the other hand, the downside of prescriptive papers is that they invariably rely on contested visions of the good life that may render their outcomes hopelessly indeterminate. You don?t have to buy Pierre Schlag?s extreme version of this argument to be skeptical that prescriptions are invariably based on so many debatable empirical assertions and methodological predispositions that the answer to ?what should I do?? often seems to rest on foundations too shaky to be universally convincing.

Related to the above, it may be that the title of this post may set up a bit of a false dichotomy. Puzzles and prescriptions may not be entirely mutually exclusive. Take Douglas Baird?s ?The Boilerplate Puzzle?, for example. It starts off as an attempt to explain why non-negotiable form warranties bother legal scholars when other non-negotiable features of consumer purchases do not, but ends up making a number of practical suggestions for better ways to approach the concerns raised by boilerplate agreements (e.g,. addressing underlying anticompetitive conduct by sellers, or considering substantive policies about what kinds of transactions require knowing waivers) than categorically not enforcing adhesory contracts. This is just one example of how resolving puzzles may lead to prescriptive suggestions.

Finally, I realize that not all law papers fall into the puzzle or prescription categories. There are purely descriptive papers that seek to empirically test factual propositions about the world (though many of these papers produce normative prescriptions about how law should work based on their findings). Some work also simply tries to answer questions about how law?s categories should be constructed. One of my favorite such debates concerns the meaning of property, with advocates of a narrower, exclusion-oriented vision of property (Merrill & Smith, Penner) pitted against those who prefer a more capacious understanding of the term (Munzer, Singer).

As I mentioned above, I find both puzzles and prescriptions interesting and useful, albeit for different reasons, and they each have a place in my overall writing agenda. My sense (based only on casual empiricism) is that the puzzle paper tends to be underappreciated, and sometimes unfairly maligned, among law profs. The point of this post has not been to suggest that the puzzle paper is a superior kind of work, but merely to say a few words in defense of why I think it should be given equal dignity with the prescriptive paper in the legal academy.