Monday, August 14, 2006

Kalman's Historian's Eye View

Jurisdynamics has focused my attention on methodology in legal scholarship--how we justify the claims we make. I've been drawn into a few debates on such questions in IP law, and was starting to feel frustrated about such controversies until I had the good fortune to peruse Laura Kalman's The Strange Career of Legal Liberalism. (Hat tip to Paul Horwitz for pointing me to her work.) It's a wonderful read that focuses on foundational questions in constitutional law scholarship. Kalman's "god's eye view" of movements within the legal academy can give a sense of perspective that's easy to lose sight of in the heat of an argument.

Kalman focuses on the use of history in legal arguments--ranging from Reagan-era originalism to a "republican revival" aimed at circumventing what it saw as naive or cynical ascription of beliefs to the founders. Kalman also shows the breadth of "foundations" legal scholars buttressed their arguments with--ranging from law & economics modeling to the hermeneutic approaches pioneered by Geertz and Rorty. We see the Icarian rise and fall of the "crits" at Harvard, and their lasting influence elsewhere. One of the books' "blurbers" calls the narrative "rollicking," and it is entertaining to watch someone like Frank Michelman switch from Rawlsian liberalism to civic republicanism as political winds shift and the country's ideological transformation renders traditional egalitarian arguments impotent.

Watching the shifting forms of argument in con law, I began to think about the language of justification in IP law. How has scholarship changed over the past 40 years or so? At the IPSC conference in Berkeley, one of the regulars commented to me that we seem to be entering an era of "normal science" in IP: the most engaging projects are not aiming to "shift the paradigm," but rather to incrementally solve problems (such as anticommons, or excess uniformity in legal treatment of diverse phenomena) recognized much earlier. The *lack* of controversy over foundations suggests a maturing field (though I will qualify that sotto voce triumphalism with the sense that, in copyright law, there is both an insistence on a growing role for economic analysis, and a resistance to such analysis based on the preservation of certain cultural forms and egalitarian commitments.).

In any event, Kalman's book makes me deeply appreciate the role of intellectual historians in giving us a sense of perspective on our research. I hope she or other historians expand their perspective beyond con law to other fields. (To give an example: there's an interesting chart on p. 18 of this Mark Hall article showing how health law casebooks have evolved since 1960 in response to developments in that field.)

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