OK—this one is deep inside the academy (and destined for the most inaccessible corners of the Bat Cave). A while back, I wrote “The Critique of Normativity.” It had thee parts (all three of which are on my law school website here). The Critique hit a nerve. Several. Actually, it might have been the hypothalamus.
I’ve thought about it from to time. And in fact I thought about it just yesterday when I talked to my jurisprudence class about the generally moribund state of contemporary American legal thought. I put it to them this way: There are about 7,000 legal academics in the U.S. and more than 97% of them confine their scholarship to legal problems they know they can resolve in the approved juridical idioms. And if they can’t resolve the problems in the approved juridical idioms (i.e. issue a normative prescription pleasing to law review editors) they don’t address the problems at all.
What’s wrong with this picture? Lots of things. If you just missed them, let me offer a slightly more pointed version: The settled practice, in the American law school world (see Spam Jurisprudence) is to address only those legal problems we know we can fix and to disregard the rest. Still don’t see a problem? O.K. Imagine, if they did this in medicine.