Explanation in legal scholarship: The inferential structure of doctrinal legal analysis

Cornell Law Review

Volumn 96, Issue 4, 2011, Pages 1035-1074

  Wendel, W Bradley ^a  

^a Department of Obstetrics Gynecology   (United States)

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EID: 79959486815     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (363)

1. See Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 800-03 (1941).
2. David Carnage & Allon Kedem, Commodification and Contract Formation: Placing the Consideration Doctrine on Stronger Foundations, 73 U. CHI. L. REV. 1299, 1299 (2006).
3. See id.
4. See id. at 1322.
5. See generally EXPLANATION: THEORETICAL APPROACHES AND APPLICATIONS 1-136 (Giora Hon & Sam S. Rakover, eds., 2001) (collecting essays on IBE);
6. PETER LIPTON, INFERENCE TO THE BEST EXPLANATION 55-64 (2d ed. 2004);
7. ROBERT NOLA & HOWARD SANKEY, THEORIES OF SCIENTIFIC METHOD 119-30 (2007);
8. WESLEY C. SALMON, FOUR DECADES OF SCIENTIFIC EXPLANATION (1989) [hereinafter SALMON, FOUR DECADES];
9. THEORIES OF EXPLANATION (Joseph C. Pitt, ed., 1988);
10. BAS C. VAN FRAASSEN, THE SCIENTIFIC IMAGE 19-23 (1980);
11. DOUGLAS WALTON, ABDUCTIVE REASONING 20-22, 23-26 (2004);
12. Timothy Day & Harold Kincaid, Putting Inference to the Best Explanation in Its Place, 98 SYNTHESE 271 (1994) (defending IBE's role in philosophical argumentation and assessing debates over IBE in arguments for scientific realism);
13. Gilbert H. Harman, The Inference to the Best Explanation, 74 PHIL. REV. 88 (1965) (arguing that many instances appearing to be enumerative induction are in fact instances of inference to the best explanation);
14. Steven Rappaport, Inference to the Best Explanation: Is It Really Different from Mill's Methods?, 63 PHIL. SCI. 65 (1996) (concluding that Lipton's account of IBE does not sufficiently distinguish IBE from other models);
15. Paul R. Thagard, The Best Explanation: Criteria for Theory Choice, 75 J. PHIL. 76 (1978) (developing a set of criteria that enhance accounts of IBE and the justification of scientific theories).
16. For the role of explanation in the social sciences, see generally JON ELSTER, EXPLAINING SOCIAL BEHAVIOR: MORE NUTS AND BOLTS FOR THE SOCIAL SCIENCES 7-74 (2007) [hereinafter ELSTER, EXPLAINING SOCIAL BEHAVIOR] (advocating for causal explanation);
17. JON ELSTER, MAKING SENSE OF MARX 3-48 (1985) (discussing the role of dialectics in explanation);
18. ALAN GARFINKEL, FORMS OF EXPLANATION: RETHINKING THE QUESTIONS IN SOCIAL THEORY (1981) (examining the criteria for good explanation in social and natural science);
19. MERRILEE H. SALMON, PHILOSOPHY AND ARCHAEOLOGY 84-111 (1982) (describing the use of functional explanation in archaeology).
20. SALMON, FOUR DECADES, supra note 5, at 126-29.
21. See Philip Kitcher, Explanatory Unification, in THEORIES OF EXPLANATION, supra note 5, 167, 169-70 (taking the domain of scientific theories as responses to "explanation-seeking why-questions"). I am taking this question as the starting point, as opposed to beginning with other problems, such as what we mean by scientific knowledge, in order to avoid numerous issues that are essential to the philosophy of science but not relevant to this inquiry into the metatheory of law. An example would be the debate between scientific realists and critics like Bas van Fraassen over whether scientific theories need only be empirically adequate or whether they must be believed to be true.
22. See VAS FRAASSEN, supra note 5 at 9-13;
23. SALMON, FOUR DECADES, supra note 5, at 135-38. Another issue not germane to metatheory in law (and also explored by van Fraassen) is the symmetry between explanation and prediction.
24. See, e.g., BAS C. VAN FRAASSEN, LAWS AND SYMMETRY 86-88, 292-317 (1989).
25. See, e.g., STEPHEN A. SMITH, CONTRACT THEORY 3-37 (2004);
26. Jules Coleman, Tort Law and Tort Theory: Preliminary Reflections on Method, in PHILOSOPHY AND THE LAW OF TORTS 183, 184 (Gerald J. Postema ed., 2001) (rejecting a top-down analysis of tort law and instead looking to whether social practices achieve corrective justice in order to assert the claim that tort law is best explained by corrective justice);
27. John C. P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. LJ. 513 passim (2003) (analyzing five theories of tort law);
28. Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 VA. L. REV. 287, 287-88 (2007) (defending explanatory economic analysis of the common law despite criticisms that such an explanation makes no sense given judges' explicit use of deontic moral terms);
29. Michael S. Pardo & Ronald J. Allen, Juridical Proof and the Best Explanation, 27 LAW & PHIL. 223, 225 (2008) (arguing that the process of inference to the best explanation explains the macrostructure of proof at trial and the microlevel issues regarding the relevance and value of particular items of evidence).
30. See generally Kola Abimbola, Abductive Reasoning in Law: Taxonomy and Inference to the Best Explanation, 22 CARDOZO L. REV. 1683 (2001) (problematizing abductive explanation in real-life legal processes).
31. For one general theory of evaluation in legal scholarship, with very different methodological commitments than those defended here, see generally Edward L. Rubin, On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80 CALIF. L. REV. 889 (1992).
32. For Dworkin's principal contributions to the metatheory of law, see generally RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE] (critiquing legal positivism);
33. RONALD DWORKIN, Hard Cases, in TAKING RIGHTS SERIOUSLY 81 (1977) [hereinafter DWORKIN, Hard Cases] (describing the questions judges must ask themselves in order to determine the rights of litigating parties in difficult cases).
34. For a particularly clear statement of Dworkin's position that shows the relationship between his conception of explanation and the arguments considered here, see RONALD DWORKIN, The Forum of Principle, in A MATTER OF PRINCIPLE 33, 35 (1985) [hereinafter DWORKIN, The Forum of Principle] ("Each theory claims to provide the most illuminating account of what our actual constitutional tradition, taken as a whole, really 'comes to'-of the 'point' or 'best justification' of the constitutional system that has been developed in our own legal history.").
35. For discussions of metatheory in Dworkin, see S. L. Hurley, Coherence, Hypothetical Cases, and Precedent, in EXPLORING LAW'S EMPIRE: THE JURISPRUDENCE OF RONALD DWORKIN 69, 69 (Scott Hershovitz ed., 2006);
36. Ken Kress, Coherentist Methodology is Morally Better Than Either Its Proponents or Its Critics Think (But Still Not Good Enough), 12 CAN. J. L. & JURISPRUDENCE 83, 83-107 (1999) (discussing Dworkinian coherentism);
37. Kenneth J. Kress, Legal Reasoning and Coherence Theories: Dworkin's Rights Thesis, Retroactivity, and the Linear Order of Decisions, 72 CALIF. L. REV. 369, 372-88 (1984);
38. Joseph Raz, The Relevance of Coherence, 72 B. U. L. REV. 273, 303-09, 315-21 (1992);
39. Arthur Ripstein, Introduction: Anti-Archimedeanism, in RONALD DWORKIN 1, 10-17 (Arthur Ripstein ed., 2007);
40. Benjamin C. Zipursky, Legal Coherentism, 50 SMU L. REV. 1679, 1706-07, 1715-17 (1997). While they certainly stand on their own as a work of legal theory, Jules Coleman's Clarendon Lectures use Dworkin's theory as a foil throughout, and can therefore be seen as an extended critique of Dworkin.
41. See JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY passim (2001) [hereinafter COLEMAN, PRACTICE OF PRINCIPLE].
42. See DWORKIN, LAW'S EMPIRE, supra note 8, at 96-98.
43. See id. at 87-113.
44. Cf. Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 3-4 (2002) (noting that even doctrinal work includes empirical arguments). As discussed in section II below, statistical explanations such as those offered by empirical legal scholars are a recognized subset of scientific explanation. However, the inferential methods under consideration here are, at best, only analogous to explanation in the natural sciences and empirical social sciences.
45. The word "frankly" is important to differentiate these arguments from what may be a tacit appeal to normative criteria in the type of argument considered here. To use a term that was somewhat more current a decade or two ago, one might refer to frankly normative arguments as pragmatic.
46. See, e.g., Symposium, The Renaissance of Pragmatism in American Legal Thought, 63 S. CAL. L. REV. 1569 (1990);
47. Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 790-91 (1989). Richard Posner, who calls himself a pragmatist, offers a brief overview and history of pragmatism in American law.
48. See RICHARD A. POSNER, So What Has Pragmatism to Offer Law?, in OVERCOMING LAW 387, 387-95 (1995).
49. The decline of doctrinal legal scholarship has been noted for a long time. See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 42-43 (1992) (noting the decline of "practical" legal scholarship, which is doctrinal);
50. see also RICHARD A. POSNER, The Triumphs and Travails of Legal Scholarship, in OVERCOMING LAW, supra note 12, at 86 (1995) (contending that "[t]he legal doctrinalists are being crowded by economic analysts of law, by other social scientists of law, by Bayesians, by philosophers of law, by political theorists, by critical legal scholars, by feminist and gay legal scholars, by the law and literature people, and by critical race theorists, all deploying the tools of nonlegal disciplines"). While I have no empirical evidence of the relative proportion of doctrinal, normative, and empirical legal scholarship, there still appears to be a market for doctrinal scholarship, as evidenced by the publication success enjoyed by many producers of it.
51. Cf. COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 28-29 (distinguishing claims that tort law ought to produce a certain outcome from explanations that refer to these outcomes as the most plausible explanation of certain features of tort law).
52. Insofar as I understand it, this may be a similar aim of a well-known cridcal legal studies paper, Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801, 809-11 (1991), although our approaches to the problem are quite different.
53. See JULES L. COLEMAN, Negative and Positive Positivism, in MARKETS, MORALS AND THE LAW 3, 4-5, 16 (1988) (discussing the "rule of recognition", a standard that determines which of the community's norms are legal ones);
54. Kent Greenawalt, Too Thin and Too Rich: Distinguishing Features of Legal Positivism, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 1, 16-19 (Robert P. George ed., 1996) (examining moral judgments in the context of legal positivism);
55. E. Philip Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 MICH. L. REV. 473, 509-18 (1977) (discussing the relationship between the law and morality);
56. David Lyons, Principles, Positivism, and Legal Theory, 87 YALE L. J. 415, 416 (1977) (book review). Raz argues that one should be careful with the term "incorporation" of morality into law.
57. See generally Joseph Raz, Incorporation by Law, 10 LEGAL THEORY 1 (2004) (casting doubt on the idea that morals can become a part of the law through incorporation). In some cases, a court or administrative agency may have discretion to consider X, and if Xis a moral principle, the law does not "incorporate" X just by reiterating that an official may take X into account; in that instance, the law is merely being perfecdy clear that X is not excluded.
58. Id. at 14 ("[W]hat appears as incorporation is no more than an indication that certain considerations are not excluded."). For Raz, the important tiling is the nonexclusion of morality by law because we are all bound by morality in any event.
59. Id. at 16-17. One may grant this point, however, and still believe there is an open question concerning the role some consideration X plays when there is not an express grant of discretion to the decision maker to take extralegal considerations into account
60. In truth the selection principle is more like "works that came to my attention during the years I served on the faculty appointments committee, or that I otherwise ran across in the course of my own scholarship".
61. See generally Barton Beebe, Intellectual Property Law and the Sumptuary Code, 123 HARV. L. REV. 809 (2010).
62. See id. at 813 ("To be sure, the express purpose and primary effect of intellectual property law remains the prevention of misappropriation and the promotion of technological and cultural progress.").
63. See id. at 814.
64. See generally LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER (2003).
65. See id. at 64 (noting that under the operative conception of property, property law identifies protected individual interests but also recognizes that these interests change as the result of societal needs).
66. See id. at 75-84 (setting forth a model that predicts when claimed rights will and should have trumping power).
67. See id. at 16-33.
68. See generally Daniel Markovits, Contract and Collaboration, 113 YALE LJ. 1417 (2004).
69. See id. at 1419.
70. See id. at 1420.
71. See DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 80-88 (2007).
72. See id. at 80.
73. See id. at 81.
74. See id.
75. See generally Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73 (2007).
76. See id. at 87.
77. See id. at 108.
78. See generally Newdow v. U. S. Cong., 328 F.3d 466 (9th Cir. 2003)
79. rev'd on other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1 (2004).
80. See Siegel, supra note 32, at 125.
81. COLEMAN, PRACTICE OF PRINCIPLE, supra note 8. Coleman's book is particularly interesting because he first works through methodological issues with some care and uses what I take to be an IBE methodology to defend his preferred conception of the role of tort law.
82. See id. at 23.
83. See id. at 16.
84. See id. at 14.
85. See id. at 21.
86. There is an enormous literature on explanation in history and other social sciences.
87. See, e.g., R. F. ATKINSON, KNOWLEDGE AND EXPLANATION IN HISTORY 95-139 (1978);
88. R. G. COLUNGWOOD, THE IDEA OF HISTORY 1-13 (Jan van der Dussen ed., rev. ed. 1993) (exploring the philosophy of history);
89. ARTHUR C. DANTO, ANALYTICAL PHILOSOPHY OF HISTORY 201-57 (1965);
90. WILLIAM DRAY, LAWS AND EXPLANATION IN HISTORY 79-85 (1960);
91. PATRICK GARDINER, THE NATURE OF HISTORICAL EXPLANATION 65-112 (1952);
92. HAYDEN WHITE, METAHISTORY 13-31 (1973).
93. See generally W. W. Bartley III, Achilles, the Tortoise, and Explanation in Science and History, 13 BRIT. J. PHIL. SCI. 15 (1962);
94. Joshua Cohen, The Arc of the Moral Universe, 26 PHIL. & PUB. AFF. 91 (1997) (defending ethical explanations while using slavery as a framework);
95. Alan Donagan, Explanation in History, 66 MIND 145 (1957) (describing Popper's hypodeductive scheme of causal explanation);
96. Tor Egil Førland, The Ideal Explanatory Text in History: A Plea for Ecumenism, 43 HIST. & THEORY 321 (2004) (applying an analysis of scientific explanation to historiography);
97. E. W. Strong, Criteria of Explanation in History, 49 J. PHIL. 57 (1952) (asking what is required methodologically to study historical documents and what the nature of explanation in history is). Interestingly, the philosophy of history is largely derived from the philosophy of the natural sciences. The starting point for much of the analytical literature on the philosophy of history (as opposed to works by historians, such as Collingwood) is Carl Hempel's 1942 paper.
98. See Carl G. Hempel, The Function of General Laws in History, 39 J. PHIL. 35 (1942)
99. reprinted in CARL G. HEMPEL, ASPECTS OF SCIENTIFIC EXPLANATION AND OTHER ESSAYS IN THE PHILOSOPHY OF SCIENCE 231 (1965) [hereinafter HEMPEL, ASPECTS]. Thus, broadening the inquiry here to include the philosophy of history may actually not result in as much of a payoff as one might initially think.
100. One might contend that explanation in humanities disciplines like history and humanistically influenced disciplines like cultural anthropology, inevitably involves interpretation.
101. See CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 24-28 (1973);
102. see also ELSTER, EXPLAINING SOCIAL BEHAVIOR, supra note 5, at 52-74. As discussed below in section II, the notion of interpretation is central to Dworkin's jurisprudence.
103. See DWORKIN, LAW'S EMPIRE, supra note 8, at 50, 90-92, discussed infra notes 125-32.
104. Cf. VAN FRAASSEN, supra note 5, at 6-7.
105. Id. at 134.
106. See the helpful overview of scientific realism and antirealism in NOLA & SANKEY, supra note 5, at 337-41.
107. For prominent realist arguments, see generally STATHIS PSILLOS, SCIENTIFIC REALISM: HOW SCIENCE TRACKS TRUTH (1999);
108. HILARY PUTNAM, MEANING AND THE MORAL SCIENCES (1978).
109. For important antirealist positions, see generally LARRY LAUDAN, SCIENCE AND VALUES: THE AIMS OF SCIENCE AND THEIR ROLE IN SCIENTIFIC DEBATE (1984);
110. VAN FRAASSEN, supra note 5. Note that the argument structure here-namely that science is "about" such-and-such an aim-is the same type of argument with which we are concerned in legal scholarship. Thus, what for philosophy of science is an issue of metamethodology is a second-order metatheoretical question in law.
111. See NOLA & SANKEY, supra note 5, at 81 (distinguishing scientific theories, scientific methodologies, and metamethodologies). The metamethodological question is a vigorously contested one in the philosophy of science
112. see, e.g., WESLEY C. SALMON, Why Ask, "Why?"?: An Inquiry Concerning Scientific Explanation, in CAUSALITY AND EXPLANATION 125, 125 (1998) [hereinafter SALMON, CAUSALITY], and will not be pursued here, except as an analogy. It is interesting to note, however, that the Supreme Court has called upon judges to determine, in some cases, whether an expert's proffered testimony is based on "scientific knowledge."
113. Daubert v. Merrell Dow Pharm., Inc., 509 U. S. 579, 589-90 (1993).
114. NOLA & SANKEY, supra note 5, at 34, 51. The distinction in the text is between general aims or goals that are constitutive of a certain conception of science and more specific norms that bring about the general aim. As I will argue below, a great deal turns on what ends are assumed to be constitutive of the relevant activity, whether science or academic legal scholarship.
115. For the classic paper, see generally CARL G. HEMPEL, Studies in the Logic of Confirmation, in HEMPEL, ASPECTS, supra note 42, at 3 [hereinafter HEMPEL, Confirmation].
116. SALMON, FOUR DECADES, supra note 5, at 8-10.
117. See CARL G. HEMPEL, Aspects of Scientific Explanation, in HEMPEL, ASPECTS, supra note 42, at 335-47 [hereinafter HEMPEL, Aspects]. If the idiotic typeface rules in the Bluebook are to have any function at all, here it would be to differentiate Hempel's paper, Aspects of Scientific Explanation from the collection of papers by the same title.
118. See, e.g., RICHARD BEVAN BRAITHWAITE, SCIENTIFIC EXPLANATION 12-21 (1955) (describing the structure of a scientific system as a deductive system that includes a generalization and several levels of empirical hypotheses);
119. CARL G. HEMPEL, PHILOSOPHY OF NATURAL SCIENCE 49-51 (1966) [hereinafter HEMPEL, PHILOSOPHY] (noting that an explanation can be formulated as a deductive argument whose conclusion is an explanandum whose premises include the basic laws of science). Background conditions can include very general propositions about the nature of scientific inquiry. For example, an explanation in terms of the positions of the stars for John F. Kennedy's assassination will not even make it past the threshold as a scientific explanation in the twenty-first century.
120. See Philip Kitcher & Wesley Salmon, Van Fraassen on Explanation, 84 J. PHIL. 315, 322 (1987).
121. See Carl G. Hempel & Paul Oppenheim, Studies in the Logic of Explanation, 15 PHIL. SCI. 135, 136-37 (1948)
122. reprinted in HEMPEL, ASPECTS, supra note 42, at 247-49. There must be constraints on what is "admissible" in the explanans.
123. See id. at 137. A significant issue for the Hempel/Oppenheim account is how to understand the requirement that scientific laws be general. The statement, "[n]o gold sphere has a mass greater than 100, 000 kg" is law-like and general in form, but it is nevertheless not a scientific law.
124. SALMON, FOUR DECADES, supra note 5, at 15. Similarly, the argument "[c]rows are the color of coal[;] [c]oal is black[;] [t]herefore, [c]rows are black" is deductive, but it clearly is not an explanation of why crows are black.
125. PETER ACHINSTEIN, THE NATURE OF EXPLANATION 123 (1983).
126. It is common to blur the distinction between deductive-nomological (D-N) explanation and hypothetico-deductive (H-D) confirmation because they function together in a model of scientific method. When scientists explain something, they take confirmed scientific hypotheses to be true and use them to explain observed phenomena. The correctness of the scientific hypothesis is presupposed by its use in an explanation. When testing a hypothesis, by contrast, scientists are working in the other direction, taking the observations as given and using them to confirm or disconfirm the hypothesis, whose correctness is yet to be established.
127. See LIPTON, supra note 5, at 27 ("The deductive-nomological model should produce a sense of déjà vu, since it is isomorphic to the hypothetico-deductive model of confirmation....");
128. SALMON, FOUR DECADES, supra note 5, at 7.
129. The qualification here is necessary to bracket questions about scientific realism.
130. See generally VAN FRAASSEN, supra note 5 at 6-13 (comparing scientific realism, which aims to give a literally true story of what the world is like, with constructive empiricism, which aims to give theories that are empirically adequate).
131. See HEMPEL, PHILOSOPHY, supra note 51, at 5-11. A brief note on the terminology of theory and hypothesis: scientists use the term "theory" to refer to "the total set of those basic theoretical principles that leads to experimentally testable consequences."
132. Id. at 26-27. A theory can be tested by the H-D method, in which case it is appropriate to refer to it as a hypothesis. A great deal of misunderstanding in the public discourse around teaching evolution in public schools arises from the ordinary-language use of the word "theory", which can be understood as meaning something like "conjecture." Thus, opponents of teaching evolution attempt to stigmatize it as something other than accepted scientific knowledge. A better term that would capture the way the word theory is used by scientists would be Lakatos' idea of a scientific research program, which contains a hard core of fundamental postulates that are held to be true and which grows through phases of theoretical development that are empirically progressive with respect to preceding stages.
133. See NOLA & SANKEY, supra note 5, at 274-81 (discussing Lakatos). But this is obviously not suitable for a bumpersticker description of what science is all about, and it is hard to come up with a term that captures both the confidence in the fundamental postulates of a research program and the virtue of science (much emphasized by Popper) that it is nondogmatic and always open to revision.
134. See id. at 253 (citing Popper's views on the virtues of scientific inquiry).
135. See NOLA & SANKEY, supra note 5, at 170-76.
136. HEMPEL, PHILOSOPHY, supra note 51, at 52. Hardcore jurisprudence geeks will recognize the allusion here to Dworkin's argument that integrity is the yet-unappreciated third political-moral value (along with fairness and justice) that was needed to explain our intuition that unprincipled legislative compromises were illegitimate.
137. See RONALD DWORKIN, LAW'S EMPIRE 183 (1986) ("Integrity is our Neptune.").
138. WESLEY C. SALMON, Comets, Pollen, and Dreams: Some Reflections on Scientific Explanation, in SALMON, CAUSALITY, supra note 46, at 55, 59-60 [hereinafter SALMON, Comets] (explaining how the ideal gas law does not provide a causal explanation of the events that are subsumed under it).
139. See id.
140. For a simple example, consider Pascal's demonstration that twenty-five is the minimum number of tosses required to yield a better than 50% chance of getting double sixes with a pair of standard dice.
141. See WESLEY C. SALMON, Scientific Explanation: How We Got From There to Here, in SALMON, CAUSALITY, supra note 46, at 302, 307.
142. HEMPEL, Aspects, supra note 50, at 381-82.
143. SALMON, FOUR DECADES, supra note 5, at 58-59.
144. Sophisticated statistical techniques for testing causal explanations underpin contemporary empirical social science disciplines, including empirical studies of law.
145. See Epstein & King, supra note 11, at 19-114 (proposing rules to help empirical researchers).
146. See WESLEY C. SALMON, THE FOUNDATIONS OF SCIENTIFIC INFERENCE 109 (1967).
147. HEMPEL, PHILOSOPHY, supra note 51, at 7.
148. HEMPEL, Confirmation, supra note 48, at 14-20. This is obviously only a suggestive example because it does not express a scientific law that is of much interest, but the same kind of relationship between a universal and its instantiations holds for laws like "[a]ll metals expand when heated" or "[a]ll planets move in ellipses."
149. See STATHIS PSILLOS, CAUSATION AND EXPLANATION 162-67 (2002) [hereinafter PSILLOS, CAUSATION AND EXPLANATION] (emphasis omitted).
150. See NOLA & SANKEY, supra note 5, at 182-83 for a clear explanation of the ravens paradox.
151. LIPTON, supra note 5, at 15.
152. See also NOLA & SANKEY, supra note 5, at 183 ("The task for any theory of confirmation will be to remove the [ravens] paradox.").
153. See Harman, supra note 5, at 90-91 ("If... we think of the inference as an inference to the best explanation, we can explain when a person is and when he is not warranted in making the inference from 'All observed A's are B's' to 'All A's are B's.'").
154. NOLA & SANKEY, supra note 5, at 121.
155. Cf. Harman, supra note 5, at 89 ("[S]uch a judgment will be based on considerations such as which hypothesis is simpler, which is more plausible, which explains more, which is less ad hoc, and so forth.").
156. See Thagard, supra note 5, at 79.
157. This example is from NOLA & SANKEY.
158. See supra note 5, at 124. Harman talks about these background beliefs as lemmas that are obscured by seeing experimental confirmation as enumerative induction.
159. See Harman, supra note 5, at 93;
160. see also LIPTON, supra note 5, at 59 ("[I]t is important to notice that the live options version of potential explanation already assumes an epistemic 'filter' that limits the pool of potential explanations to plausible candidates.").
161. See NOLA & SANKEY, supra note 5, at 122-23 (noting that "Rescher argues that we should not draw the conclusion that H is true, or that it is reasonable to suspect that H is true", but that we should rather conclude "only that H has greater verisimilitude than its rivals").
162. See LIPTON, supra note 5, at 59-61.
163. Id. at 60.
164. See id. at 60-61.
165. See id. at 61.
166. See, e.g., NOLA & SANKEY, supra note 5, at 129-30;
167. VAN FRAASSEN, supra note 5, at 88 (discussing the virtues of a theory beyond empirical adequacy);
168. see also Jesse Hobbs, Book Review, 60 PHIL. SCI. 679, 679 (1993) ("[T]he fact that S, if true, would be a better explanation than T cannot establish either that S is true or an actual explanation....");
169. Peter Milne, Book Review, 53 PHIL. & PHENOMENOLOGICAL RES. 970, 971 (1993) (noting challenges to Lipton's theories in the course of reviewing his book);
170. Jonathan Vogel, Book Review, 102 PHIL. REV. 419, 420 (1993) (noting in reviewing Lipton's book the common view that "it would be foolhardy or dogmatic to assume that explanatory adequacy and truth coincide").
171. See, e.g., LIPTON, supra note 5, at 206;
172. NOLA & SANKEY, supra note 5, at 120;
173. Thagard, supra note 5, at 77;
174. see also PHILIP KITCHER, ABUSING SCIENCE: THE CASE AGAINST CREATIONISM 50-54 (1982).
175. See NOLA & SANKEY, supra note 5, at 120.
176. See LIPTON, supra note 5, at 64.
177. For example, when fitting a curve to observed data, an experimenter may prefer a curve that passes through more data points or is simpler. Two potential rules, "always choose the simple curve" and "always choose the more complex curve", have opposing virtues and vices. The "always simple" rule may lack empirical accuracy while the "always complex" rule will deviate from the true curve because of noise in the data. Thus, some judgment will be required to make the best tradeoff between considerations of fit and simplicity.
178. See NOLA & SANKEY, supra note 5, at 141.
179. Paul Thagard insists that "[t]heories must not achieve consilience at the expense of simplicity", Thagard, supra note 5, at 89, but in some cases, the tradeoff may be inevitable.
180. See HEMPEL, PHILOSOPHY, supra note 51, at 42.
181. Id. at 44 (considering Popper's view).
182. See id.
183. HEMPEL, PHILOSOPHY, supra note 51, at 34 ("If the earlier cases have all been obtained by tests of the same kind, but the new finding is the result of a different kind of test, the confirmation of the hypothesis may be significantly enhanced.");
184. Thagard, supra note 5, at 79 ("[O]ne theory is more consilient than another if it explains more classes of facts than the other does.");
185. see also EDWARD O. WILSON, CONSILIENCE: THE UNITY OF KNOWLEDGE 266 (1998) (arguing for the unification of all human knowledge, including science and the humanities). For the value of consilience in legal explanation
186. see COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 41-43.
187. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 69-72 (2d ed. 1970);
188. Thagard, supra note 5, at 77-78, 81.
189. KUHN, supra note 88, at 71.
190. Thagard, supra note 5, at 86.
191. See, e.g., NOLA & SANKEY, supra note 5, at 42.
192. KUHN, supra note 88, at 68-69. As Kuhn notes, Copernicus showed considerable insight in seeing as disconfirming evidence what other astronomers viewed only as puzzles to be solved by the application of Ptolemaic principles.
193. Id. at 79.
194. See id. at 68-69.
195. Thagard, supra note 5, at 87.
196. KUHN, supra note 88, at 70-72.
197. See NOLA & SANKEY, supra note 5, at 41-43 (questioning whether we are in a world in which maximum parsimony is the best guide to truth).
198. See NOLA & SANKEY, supra note 5, at 337-41.
199. See KUHN, supra note 88, at 104;
200. LIPTON, supra note 5, at 122.
201. See KUHN, supra note 88, at 103-04.
202. See SALMON, FOUR DECADES, supra note 5, at 124-26 (describing experiments to measure Avogadro's number).
203. PSILLOS, CAUSATION AND EXPLANATION, supra note 66, at 265.
204. See id.
205. See HEMPEL, PHILOSOPHY, supra note 51, at 83 ("What scientific explanation... aims at is... an objective kind of insight that is achieved by [a] systematic unification, by exhibiting the phenomena as manifestations of common underlying structures and processes that conform to specific, testable, basic principles.");
206. Philip Kitcher, Explanatory Unification, in THEORIES OF EXPLANATION, supra note 5, at 167, 167.
207. NOLA & SANKEY, supra note 5, at 127.
208. Michael Friedman, Explanation and Scientific Understanding, in THEORIES OF EXPLANATION, supra note 5, at 188, 195.
209. See NOLA & SANKEY, supra note 5, at 55-56, 74-77.
210. See id. at 341.
211. Id. at 341-44 (discussing Putnam's "no miracles argument" and considering whether it is IBE, only at the metamethodological level).
212. See id. at 55.
213. The principle of demarcation, differentiating science from nonscience, is associated with the work of Karl Popper, although it is an important background norm in the philosophy of science overall.
214. See generally KARL POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1959). For an overview of the history of the demarcation principle
215. see NOLA &: SANKEY, supra note 5, at 253-74. In popular culture, TV shows like Mythbusters and Penn and Teller: Bullshit are dedicated to policing the boundary between science and, well, bullshit
216. See CARL G. HEMPEL, The Logic of Functional Analysis, in HEMPEL, ASPECTS, supra note 42, at 297, 304 [hereinafter HEMPEL, Functional Analysis];
217. SALMON, FOUR DECADES, supra note 5, at 4, 26;
218. Larry Wright, Functions, 82 PHIL. REV. 139, 141 (1973).
219. The example is from SALMON, Comets, supra note 58, at 60-61.
220. See SALMON, FOUR DECADES, supra note 5, at 111-14 (discussing how behavior or a feature of an organism can be understood causally if it has been causally efficacious in the past at bringing about some goal).
221. See HEMPEL, Functional Analysis, supra note 111, at 306.
222. See COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 25-26.
223. Id. Leaving aside the problem of aggregating individual intents, a statute may sometimes be explained functionally (or purposively) in terms of some problem in response to which it was enacted. (As English lawyers would say, a statute makes sense in light of the "mischief" it was designed to remedy.
224. See Heydon's Case, (1584) 76 Eng. Rep. 637 (K. B.) 638, 3 Co. Rep. 7a,
225. Coleman, supra note 7, at 193.
226. See id.
227. See, e.g., id. at 194 (noting that "if economic analysis is an interpretive theory in the Dworkinian sense, then it is a particularly bad one on the dimension of fit").
228. See supra notes 111-13 and accompanying text
229. See COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 26.
230. See id. at 27.
231. See id. at 27-28.
232. Unless these criteria can be specified with some degree of precision, there is a danger that the evaluation of doctrinal legal scholarship is inherently subjective and, therefore, susceptible to unconscious biases.
233. See Rubin, supra note 7, at 894 & n. 13, 895-96 (arguing that the evaluation of legal scholarship tends to be mostly intuitive, in that readers find a work "insightful" or creative without being able to specify exacdy what these terms mean and with the resulting danger that idiosyncratic personal reactions may determine the reputation of a scholar).
234. DWORKIN, LAW'S EMPIRE, supra note 8, at 217-18, 225-28, 230-31, 239-40, 248-49, 255.
235. For a helpful summary of Dworkin's position, see Gerald J. Postema, Philosophy of the Common Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 588, 608 (Jules Coleman & Scott Shapiro eds., 2002) ("[T]he methodology requires that the deliberator seek that set of general principles (theory) that makes the best overall sense of law, such that the principles not only imply the more specific rules or decisions under review but also show them to be justified (for this the principles must approximate true or rationally warranted principles of morality). Alternative principles are ranked according to the extent to which they 'fit' the legal data and 'appeal' from a moral point of view.").
236. See DWORKIN, LAW'S EMPIRE, supra note 8, at 243 ("Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process.... But... integrity does not recommend... that we should all be governed by the same goals and strategies... and [it] does not frown on this diversity.").
237. See COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 29-30.
238. See DWORKIN, LAW'S EMPIRE, supra note 8, at 244.
239. See id. at 247 (arguing that his ideal judge Hercules "must take into account not only the numbers of decisions counting for each interpretation [i.e. enumerative induction], but whether the decisions expressing one principle seem more important or fundamental or wide-ranging than the decisions expressing the other.").
240. Id. at 249.
241. Id. at 166, 185-90, 198-202, 211-15 (noting that "[w]e have a duty to honor our responsibilities under social practices that define groups and attach special responsibilities to membership").
242. Id. at 211.
243. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY app. at 325-26 (6th prtg. 1979) (A Reply to Critics).
244. GARFINKEL, supra note 5, at 21.
245. Id.
246. An example to which all parents can relate is from LIPTON, supra note 5, at 33. When the author asked his three-year-old son why he threw his food on the floor, his son answered that he was full. The author, of course, was asking why the three-year-old threw his food on the floor rather than leaving it on his plate, so the explanation failed to satisfy the relevant "why?" question.
247. See GARFINKEL, supra note 5, at 28-41 (noting that when we ask why the sky is blue, we "are really asking of the sky why it is blue rather than some other color");
248. VAN FRAASSEN, THE SCIENTIFIC IMAGE, supra note 5, at 126-29 (noting that the correct general, underlying structure of a why-question is "Why (is it the case that) P in contrast to (other members of) A?", where X is a set of alternatives).
249. Cf. NOLA & SANKEY, supra note 5, at 32 (noting that our values enter into our decisions about science, particularly our acceptance or rejection of theories).
250. See, e.g., id. at 123-30 (exploring different theories of "what is meant by being a better explanation").
251. See HEMPEL, Functional Analysis, supra note 111, at 304.
252. See supra notes 106-10 and accompanying text
253. See GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977).
254. See id. at 46 (noting the development of the word "tort" to cover a range of concepts).
255. Id. at 48-56.
256. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS 26 (1970);
257. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 86 (2002);
258. WILLIAM M. LANDES & RICHARD A. POSNER, The Economic Structure of Tort Law 16 (1987);
259. Richard A. Posner, Wealth Maximization and Tort Law: A Philosophical Inquiry, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 99, 111 (David G. Owen ed., 1995) (showing that a system of tort law guided toward wealth maximization is consistent with the moral traditions of society).
260. Posner, supra note 145, at 103 (noting that wealth maximization resonates well with several moral theories and offends none).
261. COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 30.
262. See, e.g., RONALD M. DWORKIN, Is Wealth a Value?, in A MATTER OF PRINCIPLE, supra note 8, at 237, 237 (noting that the "normative failures of [economic analysis of the law] are so great that they cast doubt on its descriptive claims").
263. See, e.g., JULES L. COLEMAN, RISKS AND WRONGS 1-6 (1992);
264. ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 3-4 (1995) (noting that some theorists "[i]nstead of emphasizing goals such as wealth maximization or market deterrence... champion liberty or community" (footnotes omitted));
265. John C. P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 918 (2010) (arguing that tort law is a law of wrongs and recourse);
266. Gregory C. Keating, Rawlsian Fairness and Regime Choice in the Law of Accidents, 72 FORDHAM L. REV. 1857, 1858 (2004) (examining tort law from a fairness perspective);
267. Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 450 (1992) (examining the moral foundations of tort law).
268. See generally Richard W. Wright, Substantive Corrective Justice, 77 IOWA L. REV. 625 (1992) (discussing corrective and distributive justice).
269. See Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 J. PHIL. 256, 271 (1979). The methodology of reflective equilibrium was made prominent by Rawls.
270. See JOHN RAWLS, A THEORY OF JUSTICE 48-51 (1971).
271. See generally John Rawls, Outline of a Decision Procedure for Ethics, 60 PHIL. REV. 177 (1951).
272. "Considered" moral judgments are not merely intuitions, but those initial judgments that have been "filtered" to screen out judgments made under conditions that may be conducive to errors. Daniels, supra note 150, at 258, 266. In this way they are quite different from the moral intuitions studied by social psychologists.
273. See, e.g., Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCHOL. REV. 814, 814 (2001) (arguing that moral intuitions come before moral judgments). The reactions observed in Haidt's subjects have not been subjected to rational reflection and thus do not count as considered moral judgments. I am not claiming here that reasoning is the cause of moral judgments, and in fact, I am not making any causal claims at all.
274. Cf. id. at 815 (claiming that the social intutionist model is "an antirationalist model only in one limited sense: It says that moral reasoning is rarely the direct cause of moral judgment"). The analysis here is of theory construction, not moral decision making.
275. Daniels, supra note 150, at 262.
276. RAWLS, supra note 150, at 49 (noting that "[m]oral philosophy is Socratic: we may want to change our present considered judgments once their regulative principles are brought to light").
277. Daniels, supra note 150, at 267. Daniels righdy says that this is a Quinean view about the relationship between facts (in this case, considered moral judgments instead of nonmoral observation reports) and theories.
278. Id. at 267 n. 16.
279. See generally WILLARD VAN ORMAN QUINE, WORD AND OBJECT (1960). Coherence (and holism) about truth and meaning is also associated with the work of Davidson.
280. See DONALD DAVIDSON, INQUIRIES INTO TRUTH AND INTERPRETATION 17-54 (2d ed. 2001).
281. See, e.g., Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L. J. 949, 967 (1988).
282. Coleman argues, for example, that there is an intuitive difference between "misfortunes owing to human agency and those which are no one's responsibility", and this helps explain features of tort law such as the malfeasance vs. nonfeasance distinction. COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 44.
283. See e.g. Posner, supra note 145, at 111.
284. See supra notes 111-13 and accompanying text.
285. Zipursky, supra note 8, at 1704.
286. Cf. STANLEY FISH, The Law Wishes to Have a Formal Existence, in THERE'S NO SUCH THING AS FREE SPEECH AND IT'S A GOOD THING, TOO 141, 141 (1994) (imputing to law-metaphorically, obviously, while literally referring to legal theorists-the desire not "to have recourse to [any] supplementary discourse" that would compromise the law's autonomy).
287. See DWORKIN, LAW'S EMPIRE, supra note 8, at 243.
288. W. Bradley Wendel, Legal Advising and the Rule of Law, in REAFFIRMING LEGAL ETHICS: TAKING STOCK AND NEW IDEAS 45, 53 (Kieran Tranter et al. eds., 2010);
289. W. Bradley Wendel, Professionalism as Interpretation, 99 NW. U. L. REV. 1167, 1198 (2005).
290. Zipursky, supra note 8, at 1714-16.
291. See DWORKIN, LAW'S EMPIRE, supra note 8, at 225-75.
292. See supra notes 125-33 and accompanying text
293. See Beebe, supra note 18, at 815.
294. Id. at 813, 820. This observation requires its own IBE argument, inferring from the existence of sumptuary laws throughout history to an explanation in terms of a social need for consumption-based systems of creating class distinctions.
295. See id. at 812-13.
296. Id. at 814, 825-27.
297. Id. at 818 & n. 33 (also referring to super copies as "genuine fakes"). California and other New World winemakers' "Champagne" presents a similar problem.
298. See id. at 832.
299. Beebe describes the problem as follows: "[T]he majority of consumers would likely confront a marketplace consisting of goods that will set them apart only briefly, if at all, before quickly being copied and rendered commonplace."
300. Id. at 837.
301. Id. at 816, 869-71. Antidilution protection prevents the use of a trademark even if there is no possibility of confusion regarding the origin of the good or service, for example in the marketing of "Tylenol snowboards, Netscape sex shops, and Harry Potter dry cleaners."
302. Id. at 846 (quoting Mattel, Inc. v. MCA Records, Inc.
303. F.3d 894, 903 (9th Cir. 2002)). Geographic origin designations protect descriptions such as Champagne and Burgundy from being appropriated by producers outside a particular area, using unapproved processes.
304. Id. at 869-70.
305. Beebe concedes that one purpose of intellectual property law remains the prevention of misappropriation and thus the creation of incentives for technological and artistic innovation.
306. Id. at 813. It is clear, however, that he wants to claim pride of place for his explanation in terms of sumptuary regulation. Antidilution and authenticity protection, he writes, "operate according to assumptions that run contrary to nearly everything we conventionally believe about the nature of intellectual property and the purposes of intellectual property law."
307. Id. at 817.
308. See id. at 847.
309. See supra notes 69-72 and accompanying text.
310. Beebe, supra note 18, at 886-87.
311. COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 16.
312. For a similar criticism of the economic analysis of contract law based on its inability to account for bilateralism of remedies, see Nathan B. Oman, The Failure of Economic Interpretations of the Law of Contract Damages, 64 WASH. & LEE L. REV. 829, 851-53 (2007).
313. See, e.g., MARC A. FRANKLIN ET AL., TORT LAW AND ALTERNATIVES 816-38 (8th ed. 2006) (discussing workers' compensation).
314. Id. at 863-65 (discussing the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660
315. Stat 3755
316. (codified as amended at 42 U. S. C. §§ 300aa-1-300aa-34 (2006))).
317. For a description of the program, see the ACC website, http://www.acc.co.nz/ (last visited Oct. 6, 2010).
318. Coleman, supra note 7, at 186.
319. See COLEMAN, PRACTICE OF PRINCIPLE, supra note 8, at 17-19.
320. KUHN, supra note 88, at 64, 68-72 (recounting examples of crisis and paradigm shift within astronomy and chemistry).
321. See id. at 79 (pointing out that certain astronomical observations were counterinstances for Copernicus but merely puzzles for adherents to Ptolemaic cosmology).
322. See Daniels, supra note 150, at 257.
323. The language here is borrowed from FED. R. CIV. P. 11 and is meant to underscore the distinction between explaining existing law and seeking to change existing law.
324. LUBAN, supra note 28, at 80.
325. See id. (noting that the "familiar justification of these doctrines lies in the concern that without confidentiality, clients will be chilled from telling their lawyers what the lawyers need to know to represent them").
326. The most powerful argument along these lines is Monroe Freedman's. See MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS 127-40 (2d ed. 2002).
327. LUBAN, supra note 28, at 81-82.
328. Id. at 83.
329. Id. at 85-86.
330. The original case is North Carolina v. Alford, 400 U. S. 25 (1970).
331. LUBAN, supra note 28, at 83.
332. AVISHAI MARGALIT, THE DECENT SOCIETY 43-46, 51-53, 72-73 (Naomi Goldblum trans., 1996).
333. See LUBAN, supra note 28, at 88.
334. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE LJ. 1060 (1976) (describing the popular concept of a lawyer as a client's legal friend).
335. Gamage & Kedem, supra note 2, at 1302-03.
336. The authors cite Carol Rose for the proposition that one can (and should) bring a botde of wine to the host of a dinner party but to bring an equivalent amount of cash would cause serious offense.
337. See id. at 1325
338. (citing Carol M. Rose, Whither Commodification? (Yale Law Sch. Pub. Law & Legal Theory Research Paper Series, Paper No. 84; Ctr. for Law, Econ. and Pub. Policy, Research Paper No. 308, 2005), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=706644#%23.
339. Id. at 1321.
340. See, e.g., ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 127 (one vol. ed. 1952).
341. See, e.g., Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 145, at 387, 398.
342. See ALBERT R. JONSEN & STEPHEN TOULMIN, THE ABUSE OF CASUISTRY: A HISTORY OF MORAL REASONING 252 (1988). Cass Sunstein talks about "fixed points" in legal doctrine, referring to the same phenomenon as a paradigm case.
343. CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 69-71 (1996).
344. See supra note 75 and accompanying text.
345. See, e.g., RICHARD A. POSNER, Judicial Opinions as Literature, in LAW AND LITERATURE 255, 255 (rev. and enlarged ed. 1998);
346. JAMES BOYD WHITE, Reading Law and Reading Literature: Law as Language, in HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 77, 77 (1985);
347. Jessica Lane, The Poetics of Legal Interpretation, in INTERPRETING LAW AND LITERATURE 269, 269 (Sanford Levinson & Steven Mailloux eds., 1988). Although the word "interpretation" is perhaps more common, I use the term "criticism" to distinguish the problem of interpretation in most analytic jurisprudence, which is concerned more with questions such as the relationship between texts and meaning, the problem of objectivity, and whether intention is relevant to interpretation.
348. See generally LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (Andrei Marmor ed., 1995) (examining whether recent methodological developments in interpretation are good).
349. POSNER, supra note 203, at 272.
350. See STANLEY FISH, Working on the Chain Gang: Interpretation in Law and Literature, in DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES 87, 91-94 (1989) [hereinafter DOING WHAT COMES NATURALLY].
351. See STANLEY FISH, Still Wrong After All These Years, in DOING WHAT COMES NATURALLY, supra note 205, at 356, 357.
352. See STANLEY FISH, Dennis Martinez and the Uses of Theory, in DOING WHAT COMES NATURALLY, supra note 205, at 372, 372 (reporting that Dennis Martinez, a baseball pitcher, had received advice from his manager to "[t]hrow strikes and keep 'em off the bases... What else could he say?" (internal quotation marks omitted)).
353. See supra notes 125-27 and accompanying text.
354. See Ronald Dworkin, Objectivity and Truth: You 'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 87-88 (1996). This is a theme of his recent book, Justice for Hedgehogs.
355. See also, e.g., Russ Shafer-Landau, Truth and Metaethics: The Possibility of Metaethics, 90 B. U. L. REV. 479, 479 (2010) (criticizing this aspect of Dworkin's book).
356. DWORKIN, LAW'S EMPIRE, supra note 8, at 225.
357. See id. at 256.
358. See Weinrib, supra note 155, at 956, 963-65.
359. RICHARD A. POSNER, The Triumphs and Travails of Legal Scholarship, in OVERCOMING LAW, supra note 12, at 81, 88.
360. See NOLA & SANKEY, supra note 5, at 128.
361. See, e.g., id. at 129-30.
362. VAN FRAASSEN, supra note 5, at 20-21.
363. FISH, supra note 160, passim (alterations omitted).