The Knowledge Bubble Something Amiss in Expertopia

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The Knowledge Bubble: Something Amiss in Expertopia

Pierre Schlag
This chapter is an effort to consider some theoretical challenges and problems

facing an ascendant genre in American academic legal thought – a genre that
I call “knowledge production.”
The chapter is an experiment – in two related senses. First is the chapter’s
intense condensation. Here I seek to engage with a good number of compli-
cated issues in an extremely brief text. There is not the slightest doubt that the
issues discussed herein could easily warrant treatment at full UP monograph
length. Second is the chapter’s own counterfactual assumption: I am deliber-
ately pretending here that we legal academics already have something which
we surely do not – namely, a discourse of legal thought relatively free from
both (1) the intellectual shortcuts of juridical argument and (2) the positivist
tunnel vision of insular foreign academic disciplines. Despite being the last
of the generalist disciplines (a formalized concatenation of history, politics,
economics, rhetoric, philosophy, etc., repeated over time) law at this point
provides no such discourse (Moyn 2017). But I am going to pretend it does.
Begin, then, by considering that academic legal thought has sundry modes
and objectives. Indeed, academic legal thought can aim to yield explanation,
understanding, interpretation, edification, elucidation, observation, critique,
narrative, norm-selection, norm justification, political action – any of these and
more, including all manner of hybrids (Schlag 2009b). Even if these modes
and objectives are not sharply distinct and even if the texts we encounter most
often seem like hybrids, nonetheless it is possible to sense in various thinkers
and schools differences in emphases and styles. (Compare Posner to West to
Kennedy to Kahn to . . . etc.)
Amid the varying possibilities, American legal academics (particularly elite
academics) seem to be increasingly styling their projects in the genre I call
“knowledge production” (emphasizing both knowledge and production). My
use of that term here is sharply distinct from and not to be confused with
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The Knowledge Bubble: Something Amiss in Expertopia 429
the much more encompassing meaning in vogue in the general literature on

knowledge studies (Rubio and Baert 2012; Riles 2007).
Here, I mean to question the genre of knowledge production, albeit in a
friendly way. (The “compared to what?” question is chastening.) Animating
my efforts here is the thought that while this genre claims to be about the pro-
duction of “knowledge,” the actual configurations of the genre seem patterned
to avoid some vexing challenges and problems which, were they to be explic-
itly recognized, might well thwart these ambitions and lead to abandonment
in favor of different kinds of projects. In effect, then, I am inviting the reader
to a gestalt shift – to the recognition that much of the elite academic efforts to
produce expert knowledge of the law might be usefully understood as efforts
not to know, as elaborate academic strategies to avoid taking cognizance of
career-arresting phenomena.
As I use the term, knowledge production is an outgrowth of the academic
professionalization of the American law school – a process that emerged on
the scene back in the 1970s with the “law and . . . ” movements, then pro-
ceeded through various iterations of multidisciplinary approaches, and grad-
ually matured in elite law schools via the vigorous and rapid recruitment of
dual-degree and single-degree hires. Knowledge production, as I see it, does
not displace the dominant paradigm I earlier described under the name of
“normative legal thought” (Schlag 1991). Instead, knowledge production rep-
resents a new elite variant within that paradigm. Even as it frequently seems to
eschew explicit normative prescriptions, most work within the genre casts itself
into dutiful supporting roles for highly conventional normative legal projects.
Knowledge production is academically ambitious, hewing closely to profes-
sional academic norms as opposed to the more legalistic professional norms I
have previously described as leading to “spam jurisprudence” (Schlag 2009a).
As a genre, knowledge production exhibits certain characteristic virtues: It
is sophisticated, technically rigorous, methodologically scrupulous, and the-
oretically conversant. It generally strives to eschew the less rigorous syncretic
rhetorical moves common to judges, lawyers, and other legal officials. Its
overt aim is to produce a piece of knowledge about law that is definitive,
enduring, and if at all possible, unassailable. The major intellectual qualities
that it evokes are expertise and mastery. In style, knowledge production is
characteristically (though not always) internally variegated, multilayered, and
meticulously documented. Most often, it exhibits significant reliance on one
or more disciplines foreign to law (e.g., economics).
For those who are immersed in the world of American academic legal
thought, the recent ascendancy of this genre is unmistakable. The rise of
quantitative empirical legal studies, the return of positivist social science,
430 Pierre Schlag
the resurgence of analytic philosophy – all of these tendencies and many

others bespeak a traditional effort that frames legal scholarship as an effort to
contribute to the storehouse of knowledge.
But this is law we are talking about . . .
. . . and thus the questions immediately arise: Is law the kind of thing or
non-thing knowable in any deep sense of the term? And to what extent do we
have anything like a discipline in or of law that will assist us in the knowing of
it? Or just to put an edge on it: Is there more to knowledge production in law
than a category mistake (a subject/object mismatch) instituted and sustained
by a highly credentialed and certification-conscious elite desirous of reaping
the benefits of surplus hierarchy? Framed this way, the answer must surely be
some version of yes. Still, residual questions remain: in what ways and how
much?
On these questions, I have something to offer – namely, a way to proceed
(i.e., the diagnostic). As I see it, and I hope you will, too, knowledge production
in law is haunted by something of a catch-22. In order to yield knowledge, a
knowledge production effort in law must confront and address certain chal-
lenges and problems (most topically, the ones set forth below). But if a knowl-
edge production effort does in fact confront and address those challenges and
problems, the project will in all likelihood flounder and warrant abandonment.
Needless to say, this vexing paradox produces an odd, somewhat ambiva-
lent state of mind in those legal thinkers involved in knowledge production
projects. My sense is that many legal thinkers engaged in knowledge pro-
duction do “sort of know” that their efforts are subject to something like the
challenges and problems set forth below. It’s just that they would prefer not
to know this . . . even if . . . in some dim, intermittent and awkward sense, they
sort of do. They are, in short, caught in the grips of a conflicted desire to
know and not to know. This is an interesting state of mind – yielding a kind of
self-delusion somewhere in the vicinity of Sartrean “bad faith.”
How do legal thinkers manage to sustain such an ambivalent state? This
too is an interesting question. Whatever else might be said, this much is clear:
Maintenance of such an unstable state depends on steering wide of any clear
or straightforward articulation of the challenges and problems.
Here, I will be trying hard to do exactly the opposite. That is to say, I will try
to articulate as clearly and succinctly as possible the challenges and problems
so that they might become ours – which is to say, yours.
(You are very welcome.)
I realize that, as rhetorical strategies go, this one is a bit iffy and could
well invite a certain resistance. It’s all I can come up with, however, and, if
it makes things any better, I can promise that sticking with it for a few pages
will actually bring significant intellectual, aesthetic, economic, and political
insights – even if you don’t agree with my ultimate conclusions.
Because this presentation is a bit unorthodox, let me offer up a way of reading
what follows. As I see it, it’s probably most helpful to think of the diagnostic
that follows as a compendium of generalized difficulties variously afflicting
knowledge production in law. This compendium can be used to consider
whether or not a given instance of knowledge production has succeeded in
producing knowledge or has instead delivered something of a different (and
presumably less exalted) character.
Now, it would be nice if I could offer an account of what it means to
“know” something in law or legal thought. That, however, is a matter I wish,
for obvious reasons, desperately to avoid. To the degree an answer is provided
here at all (and it really isn’t) it would be by way of the negative – that is to say,
by deploying the diagnostic itself: If a given effort in legal thought is troubled
by one or more of the challenges or problems laid out below (not all efforts
will be), then . . .
(1) chances are it is likely an effort at knowledge production, and

(2) the effort has likely just failed.
Some of the challenges and problems laid out below are more in the way of
dilemmas to negotiate (there is hope for progress even if ultimate resolution
will continue to elude), while other challenges and problems present more
dire intellectual difficulties (we legal thinkers seem to be working off the wrong
maps, asking the wrong questions, and attempting to perform impossible tasks).
Given my approach, it’s pretty obvious that the rest of this chapter cannot
hew to the conventional strategies of contemporary legal thought. A different
approach is required. Here it is reduced to a few steps. First, I will offer up
a brief description of the challenges and problems – the diagnostic (Part 1).
Second, I will articulate the possible constitutive circularities of knowledge
production (Part 2). Third, I will describe how this all matters in terms of the
intellectual, the aesthetic, the economic, the just, and the political (Part 3).
1 the diagnostic – challenges and problems

The challenges and problems set forth below are recursive in American legal
thought. Whether any of them is germane to any given knowledge production
effort is not up to me (I offer a diagnostic, not a diagnosis). Clearly, some of the
challenges and problems are more troublesome and/or pervasive than others.
432 Pierre Schlag
The Paradox of Inquiry

To produce knowledge of an intellectual and cultural practice such as law, it
is necessary in some sense that the thinker approach the object of inquiry (law)
on its own terms. Paradoxically, it is also necessary that the thinker achieve
some critical detachment from that object of inquiry to gain perspective – to
motivate and formulate critical questions in the forms of why, how, what, and
when?
Consider first the necessity of approaching the object of inquiry on its
own terms. A thoroughgoing failure to do so will systematically eclipse the
ways in which the meanings and identity of the object (e.g., the Consti-
tution) for a given group (e.g., judges) affect that group’s behavior and
understanding. Something of what we want to know and which may be
important will be thus placed beyond purview. This is the classic crit-
icism made of what Hart described as the “external perspective” (Hart
1994).
Failure to approach an object of inquiry on its own terms can also yield the
degradation of explanation and understanding into an exercise of translation.
This is the bane of interdisciplinary work when it goes wrong. One strives,
for instance, to explain one discipline’s work product (e.g., law) by deploying
the categories and grammar of another discipline (e.g., economics). But then
one day – a ghastly realization: There’s nothing more going on here than the
translation of one discipline’s semantics and grammar into those of another.
To be sure, this is not nothing, but it is considerably less than what might
qualify as explanation or understanding.
Now consider the other side of the paradox – the failure to achieve critical
detachment. Such a failure means that the legal thinker takes up the practice
in which he or she is participating – in fact so much so that the legal thinker is
in danger of merely replicating the practice. The risk is that explanation and
understanding will be swallowed up by performance. This is a classic criticism
made of formalist doctrinalism as well as policy doctrinalism: You have not
explained or understood anything. Instead, you have merely faithfully repeated
the patterns you have discerned in the case law. This is the specter that haunts
what is often presented as the “internal perspective” (Barzun 2014; Hart 1994).
Again, if it is explanation and understanding one is after, something will be
missing here.
One of the difficulties facing the legal academic in dealing with the paradox
of inquiry is that he or she typically belongs to two very different communities –
the profession and the academy. These communities have different job descrip-
tions, tasks, responsibilities, and governance mechanisms. The communities
demand different degrees of respect for and detachment from official legal texts
and acts. Belonging to both communities, legal academics typically respond
by trying to honor the demands of both, albeit in a rather indeterminate blend
that, ironically, fully satisfies neither.
Hence, for instance, legal academics accord some credence to judicial opin-
ions because they are authoritative while simultaneously visiting skepticism on
those judicial opinions because they are perceived to be intellectually under-
developed. The particular mix of credulity and skepticism accorded is almost
never specified or defended (a mimesis of the fact that the particular mix of
reason and authority in a judicial opinion is itself almost never specified or
defended). Instead of striving to distinguish that which belongs to the academy
from that which belongs to the profession, the academic will present his or her
work as faithfully devoted to the analysis of some unitary object of inquiry –
as if the invocation, for instance, of a legal doctrine meant the same thing in
a law review article, in a lawyer’s conference call to the client, in a judicial
opinion, in a legislative committee hearing, or in a press conference. In all
likelihood, the “same doctrine” will be invoked to mean different things in all
those speech acts, even if the speakers (incorrectly?) presume that it means
the same thing.
To sum up the difficulty in the form of an overly simplistic quantitative
but nonetheless aptly pointed question: With regard to the object of inquiry –
how much respect and how much critical detachment? Certainly the question
cannot be answered in the abstract. We are lacking both frame and scale
here. Moreover, the answer to the question would depend, inter alia, on the
identity of the object of inquiry, the context in which the question is posed,
the addressees, and more.
To put the point in a more critical idiom, the difficulty posed by the paradox
of inquiry exposes legal thinkers to two possible pathologies. One of them (call
it disciplinary sadism) is the risk that a particular approach may be so poorly
suited to its objects of inquiry that it deforms or distorts the latter. The counter-
tendency (call it disciplinary masochism) is the risk that a particular approach
may surrender too much to its objects of inquiry (e.g., the authoritative legal
institutions and materials) (West 2009). Between disciplinary sadism and dis-
ciplinary masochism, the legal thinker faces a quandary. It would be great if
one were a corrective for the other or if a reflective equilibrium between the
two could be reached But, a priori, there is no reason to believe that there
is such an equilibrium to be found – nor to believe that one would know
when it had been reached (if it had). Moreover, to pursue the metaphor, the
possibility of disciplinary sado-masochism (the twice-distorted view) is not out
of the question.
434 Pierre Schlag
The Divisibility Problem

Legal academics who seek to produce or convey legal knowledge routinely
approach the enterprise by segmenting off a micro (a part) from the macro
(a whole). This segmentation either presupposes that stabilized, stand-alone,
preexisting divisions of the macro into various micros are already in place or
it presupposes that the legal thinker has somehow successfully imposed his or
her own subdivisions on the macro.
The former is no longer intellectually credible in the American legal aca-
demic context (even if it is still routinely deployed). The latter is rarely
achieved.
Stabilized, Stand-Alone Preexisting Divisions of Law

Consider the possibility that stabilized, stand-alone, preexisting divisions of
law might serve to segment off some identifiable micro from the macro. The
categories run from subject-matter divisions (e.g., contracts/torts) through legal
doctrines (e.g., the collateral source rule) all the way down to legal concepts
(e.g., due care).
These categorical or conceptual divisions are familiar to legal thinkers:
They mark the divisions of the curriculum, areas of academic specialization,
sections in casebooks and treaties, the identity of listservs, formal and informal
citation chains (and so on). They are still routinely used: “Oh, that’s a property
law issue.” “You should talk to a contracts professor.”
Nonetheless, and at the same time, in intellectually serious precincts, such
divisions have not been viewed as fully stabilized since the days of nineteenth-
century classical legal thought and the heyday of natural law (Bloom 2005;
Lessig 1995). Indeed, virtually no legal thinker in the American legal academy
today believes, if pressed (a crucial qualification), that such doctrinal categories
can, in and of themselves, resist the push and pull of policy, principle, values,
and other considerations. They are in all sorts of ways more or less porous cat-
egories – compromised to varying degrees both practically and conceptually.
Indeed, if pressed explicitly on the issue, no serious legal thinker in the U.S.
legal academy today believes that the juridical partitioning of the corpus juris
contains or resists successfully the causal, interpretive, political, and normative
forces that traverse those self-same partitions. Nor would a serious legal thinker
believe that the implications and effects of a particular doctrinal domain or
directive remain confined to the specified field.
To the extent that doctrinal taxonomies continue to be taught in law school
and used in scholarship – and, as we’ve seen above, they most certainly are –
legal thinkers generally understand that these doctrinal partitions are situated
in “live fields” of policy/principle/values/considerations/interests/ institutional

pressures/etc. Legal thinkers also generally understand that doctrinal partitions
are static representations of a dynamic law (with all the usual shortcomings
attending any effort to represent dynamic phenomena in static terms). Simi-
larly, it is also widely understood that doctrinal taxonomies in the books do not
ipso facto translate into the same taxonomies in action. And it is understood
as well that the realization (the making real) of law in social and economic
practice is not an either/or phenomenon, but rather a question of degree and
context (Galanter 1974).
At the same time, legal thinkers generally recognize that judges, lawyers,
and legal officials continue to operate with and within the subdivisions of
doctrinal taxonomies. In other words, legal thinkers recognize that for judges
and lawyers, this is a lived legal reality – a kind of occupationally mandated
analytic tunnel vision.
This recognition (both that it’s happening and that it is a tunnel vision)
is intellectually salutary. But the recognition doesn’t salvage the knowledge
production enterprise. Why not? Well, because the analytic tunnel vision of the
judges is not entirely successful. It is instead variably successful in impressing
the doctrinal partitioning at various levels of depth. This variability actually
renders the knowledge production enterprise more daunting. Indeed, we have
two somewhat conflicting things going on at once – adding considerably to
the complexity of law. While doctrinal partitioning as practiced by lawyers
and judges systematically misrepresents its own implications and effects as
generally confining, it nonetheless entrenches this misrepresentation in the
social and economic fabric to varying and mutable degrees (thereby in an
almost paradoxical sense rendering the misrepresentation partially true).
Many (most?) knowledge production endeavors enter the scene not so much
by critically challenging or examining the epistemic and sociological status of
the doctrinal partitioning, as by granting it authority and offering to “improve”
it or “reform” it through the introduction of knowledge often drawn from other
disciplines (e.g., economics or social science).
From an intellectual standpoint, the effort to shore up the lacunae of law
with substance drawn from other disciplines is much more problematic than
it might initially seem. Put it this way: If the frames, categories, and concepts
of one discipline (i.e., law) are of questionable conceptual integrity to begin
with, it is unlikely that things will be measurably improved by importing
foreign knowledge if that foreign knowledge is made to honor and respect the
very same frames, categories, and concepts deemed suspect in the first place.
And yet . . . isn’t that precisely what interdisciplinarity does when it proposes to
reform one legal micro at a time, leaving all the others intact – ceteris paribus?
436 Pierre Schlag
To sum up: The habitual supposition among legal thinkers that fields, legal
regimes, and doctrinal rules are insular and that their legal effects and impli-
cations are confined to their specified domains is a more or less entrenched
historical hangover lacking in intellectual support. There may, of course, be
sound intellectual reasons to honor and respect this doctrinal architecture.
Indeed, it may be helpful to recall here that no one in legal studies ever advo-
cates total abandonment. But that is not at all the same thing as affirming that
the doctrinal architecture and its various divisions are themselves intellectually
perspicuous.
Imposition of Extralegal Divisions

The second major strategy for segmenting off a micro from the macro is for
the legal thinker to impose his or her own subdivisions. How this might be
achieved is a topic that receives very little attention in the legal literature.
Instead, legal thinkers often simply posit their topic as if the name of the topic
and its definition were in and of themselves sufficient to designate an extant
legal, intellectual, or social formation. In short, issues pertaining to frame
selection and scope setting are often just bypassed. If we are not involved in
knowledge production but some other endeavor (e.g., edification), this may
not be a problem. But if it is knowledge production that is at stake, then the
actual divisibility of a micro from the macro would seem to be required, not
only so that we can have some idea of the contours or identity of the micro in
question (the scope and content of the domain or topic), but more importantly
so that we might have some assurance that the micro can in fact be isolated
from exogenous forces, considerations, and institutional pressures in the first
place.
Divisibility is, of course, a serious problem, as neither law nor its fields
of application are natural kinds (Bird and Tobin 2008). To the extent that
divisibility holds in any given legal context (and it may), this divisibility is
itself dependent on the maintenance or continuation of the socio-political-
intellectual institutions, practices, and forces that sustain and possibly enforce
this divisibility. Unfortunately, examination of the endurance or fragility of
those institutions, practices, and forces is frequently missing in the general
literature and in many knowledge production efforts.
Micro/Macro Dissonance
In order for legal knowledge to be produced concerning some given micro,
not only must the latter be divisible from the macro, but it also must be
relatively insular from any destabilizing macro-forces. That is to say that either
the operative rules governing the micro must be (roughly?) the same as those
governing the macro (but short of fractal logic, why would this be?) or the
micro must be insulated somehow from the operative macro rules that might
be inconsistent with the micro and that would thus disrupt, contradict, or
frustrate the rules operative at the micro level.
In contemporary legal thought, the micro/macro dissonance problem is
particularly acute because the dominant form of normative logic in the Amer-
ican legal academy is consequentialist in character: ad hoc policy analysis,
cost/benefit analysis, efficiency analysis, utilitarianism, etc. Those kinds of con-
sequentialisms know, in principle, no boundaries and no limits. The upshot is
that in principle everything affects everything else. This means that, if the legal
thinker wishes to claim knowledge about how law (or anything else) functions
in his or her micro, some explanation must be forthcoming as to why and
how the micro he or she has specified is in actuality (principle is to no avail)
insulated from the disturbance of exogenous forces. Here, too, knowledge pro-
duction efforts and the general literature typically fail to consider this problem
in any depth.
Multiple Macros
Thus far the presentation here has greatly simplified matters by presuming that
any given micro belongs to a single macro – as opposed to say, multiple macros
(each with its own different operative rules). One possible way of supporting
the idea of a single macro would be the claim that a particular macro (e.g.,
“the invisible hand” of the market or the “conceptual analysis” of analytical
philosophy) perforce dominates all the others. In other words, the claim would
be that a particular field or approach underwrites the identity, disposition, and
behavior of the other relevant fields or approaches.
There are serious difficulties with such claims.
Perhaps the greatest problem here is that the assumptions and theoretical
priors of one field tend to feature as the object of contested inquiry in another
field. Thus the rational utility maximizer of microeconomics is a contested
persona in cognitive psychology. Likewise the “sentence meaning” often pre-
sumed into axiomatic existence in analytical philosophy is contested terrain in
linguistics. And so on and so forth . . . from one department of the university
to the next . . . so that in the end the claims of any department’s disciplinary
supremacy often turn out to be disciplinary bluster at best and disciplinary
dogmatism at worst (Lukács 1971b).
A further problem here is that there is no particular reason to suppose that the
operative rules or regimes in the social, economic, cognitive, psychological,
438 Pierre Schlag
and linguistic macros coincide or track with each other. That is to say that
the categorical schemes of one discipline (its conceptual indivisibilities) need
not track with those of another. Consider, for instance, that in applying their
marginalist approach, neoclassical economists have yet to ascertain just how
to break down the decidedly nonmarginalist linguistic and authority-based
indivisibilities of law (Schlag 1989). This is an interesting question worthy of
exploration (Fennell 2012; Schlag 2013).
Now, of course, it might be that in a given context, the various categorical
schemes of many disciplines do in fact coincide during the same time period.
Perhaps so. But absent some imperial totalizing perspective (and that would
introduce its own vicious difficulties) there is no reason to suppose so.
In addition, it is important to notice that very few fields have bothered to
ground or validate their ostensible disciplinary supremacy over other fields. To
the extent they have, it has been in the main through the rather poor strategy
of verificationism: “Our approach is the correct one because we can explain
or understand lots of your stuff and your data . . . which admittedly . . . now that
we think about it . . . we have already reformatted (i.e., distorted) to fit the
categories, concepts, and frames of our own field.”
The great difficulty with multiple macros for the study of any given micro in
law is that the latter finds itself variously affected and to some degree governed
by the different operative mechanisms of the various macros:
the social,
the economic,
the cognitive,
the psychological,
and so on.
Entailment Difficulties
Academic producers of legal knowledge generally have to (or simply do) take
some sort of stance as to the relation of law to the social and the economic.
The reason is simple: Legal thinkers wish to make claims about how law or
laws affect X – where X is conceptualized (correctly or not) as at least partially
“outside of law.”
So what are the relations between law and X? At the level of concrete events,
the relations are nearly endless. But interestingly, at the level of legal form,
a very small set of recursive relations are routinely asserted. Below I set forth
the most common relations asserted. The names used below are merely labels
specific to this chapter. What matters are the forms that the labels stand for.
These forms are instanced both phylogenetically (the history of American legal
thought) and ontogenetically (the evolution of the law student). Going from
most simple (and seemingly determinate) to most complex (and seemingly
indeterminate), the forms are as follows:
Formalism (law almost without facts): Law rests on its own bottom and social
and economic actors adapt to its categories and grammar. What is most striking
about this approach is that it conceives of law as essentially a relation to itself.
The social and economic world need not be actually considered in any great
depth because it is presumed that it will adapt.
Doctrinalism (the one-way relation): Law in various ways affects the social
and the economic. Doctrinalism posits a “one-way” relation between law on
the one hand and the social and economic fields of application on the other.
The relationship is one-way in that doctrinalism systematically declines to
consider what produces or shapes doctrinalism itself. The idea that the social
and the economic might shape doctrinalism is not so much rejected as deemed
irrelevant to the task at hand: Just as an appellate advocate would not explicitly
mention the forces shaping the court’s reasoning, the doctrinalist (taking her
cues from there) likewise declines this sort of reflexive inquiry. Doctrinalism
thus seems to spring forth from itself. Doctrinalism is distinguished from
formalism in that doctrinalism is very often seriously concerned with whether
the law is appropriately attuned to the social or economic fields.
Realism (the two-way relation): Law responds to various social forces and
in turn affects the social and economic field. This is a “two-way” relation
inasmuch as it recognizes the need to explain not simply how law yields
effects in the social and economic field but how the social and economic field
produces the law. This view underwrites some positivist social science (as in
much law and society work) as well as some recent efforts in empirical legal
studies.
Dialectical thought (the relatively indeterminate two-way relation): This con-
ceptualization also offers a two-way relation: Law responds to various social
forces and in turn affects the social and economic field, but the relation is con-
ceived as opaque and not fully determined. In the characteristic expressions
the relations of law and the social are described as “dialectical,” “interactive,”
“mutually constitutive,” and the like. Asymmetrical relations are possible, such
as in the Marxist materialist stance of “determination in the final instance” or
the more philosophically idealist notion that law is “relatively autonomous.”
Allowance for the self-relation of law to itself is usually acknowledged (some-
times enthusiastically affirmed as in some of the work of critical legal studies,
but, at the same time, all within certain limits).
Dedifferentiation (the collapsed nonrelation): Law and the social and eco-
nomic field cannot be intelligently related to each other in the abstract as the
440 Pierre Schlag
conceptual move that ostensibly separates them out fails in the first instance
(Schlag 2009b). Each is inextricably intertwined with the other, which means,
if one takes this phrase seriously, that they cannot be extricated. Dedifferenti-
ation effectively precludes or deflates the assertion of a “two-way” relation (or
even an “n-way” relation). Dedifferentiation raises a very thorny question of
how a legal ontology (in the computer science sense of ontology) could be
established or deployed in an intellectually satisfying manner.
The latter understandings – dialectical thought and dedifferentiation – are
in tension with the possibility of making secure entailment claims between
law and X. Both offer significant objections to knowledge production projects
aimed at formalization, mastery, and authoritativeness. Both put in question
the projects of positivist social science.
Given a sufficiently generous intellectual attitude, it is possible to recognize
that each of the knowledge forms above (formalism, doctrinalism, realism,
dialectical thought, and dedifferentiation) describe processes that are more
or less inscribed and sedimented in and as law itself throughout its various
domains. This generous pluralism, far from bringing resolution, creates further
challenges and problems.
Despite all this, it remains possible to make relational claims – so long,
of course, as one uses language carefully to enable the relational claims to
be true. The downside of this approach, of course, is that we all know the
trick: Ask a sufficiently formalized question and you will get a straightforward
answer. The downside of this m.o. is that, relative to what we want to know,
the answer is likely to reside in the neighborhood of the irrelevant.
Again, the problem is that many (most? all?) knowledge production efforts
fail to account for the interactive effects and implications of the dissonant
knowledge forms described above. Instead, legal thinkers generally simplify
their task by operating within a single knowledge form (formalism, doctrinal-
ism, and so forth). Sometimes they will use one knowledge form to beat up
on another knowledge form. Very occasionally they will take several of the
knowledge forms into account. But the problem then is that the legal thinkers
have no criteria by which to determine the relative importance, significance,
and reach of these knowledge forms. This is not a problem if the point is
interpretation or edification, but if it is knowledge production that is at stake,
then we have a problem here.
Multiple Modes of Entailment

Even with a relatively simple view of law (e.g., doctrinalism), significant
entailment problems arise. That is because we recognize multiple modes of
entailment. By mode of entailment, I mean to refer here to the ways in which
X somehow yields Y. Notice that where law is concerned, X might yield Y in

several different modes: logically, causally, symbolically, and more.
Therein lies the problem: For contemporary legal thinkers, the effects and
implications of law on its field of application occur through multiple modes of
entailment simultaneously. Thus, law “acts” on the world not simply causally
(i.e., by attaching consequences to defined statuses and behaviors) but through
Austin’s illocutionary force (by constituting social identities and social struc-
tures), narratively (by engaging in literary or rhetorical integrations and dis-
integrations), mythically (by creating, enacting and destroying various social
mythologies), and reflexively (by modifying its own identities and operations)
(Arnold 1935; Hart 1994; Post and Siegel 2007; Tribe 1989; White 1984).
For us, law and laws do all these things simultaneously. Moreover, absent
a compelling argument, there is no reason to presuppose synchronicity or
consonance among these various modalities. Hence, in their relations to each
other, the various modalities can be:
synchronous or temporally discordant
mutually supportive or reciprocally interfering
stabilized or mutable
Again, many knowledge production efforts simply fail to take into account
the complexity (and the complex interactions) of these multiple modes of
entailment.
Legal thinkers (like others) still have no widely shared or even acceptable
general theory as to how the various modes of entailment hook up (or not)
with each other. We still do not know how the worlds of narrative meaning
are linked to political mythology . . . are linked to the worlds of economic
causation . . . are linked to governance by social norms . . . are linked to . . . And
so on.
Meanwhile, whatever harmony or consonance there may be among these
modes of entailment remains for the moment highly abstract and speculative.
How then does a claim to knowledge about law, in any deep sense of the term
knowledge, survive the realization that where law is concerned it is (nearly)
always simultaneously causal, illocutionary, narrative, symbolic, and reflexive?
Not clear at all.
Identity Problems: Incomplete Formalization

Legal identities – ”the state,” “the employee,” “the contract,” “the common
carrier” – are often incompletely formalized. Not only are such terms some-
times considered vague, ambiguous, and ambivalent (this is conventional fare
in legal analysis) but, more profoundly, they seem to be unstable composites
442 Pierre Schlag
of various determinations sounding in social, normative, political, linguistic,

cultural, and psychological orders (Schlag 2002). Whatever fixed meaning they
appear to have at any given time seems to be a function of the disciplinary
perspective that momentarily dominates their apprehension or invocation.
But categories and axioms do not travel well from one discipline to another.
An idea that can seem very meaningful in one discipline can seem like a locus
of confusion in another. For instance, the idea that “[a]ll scarce resources are
privately owned” apparently means something to neoclassical economists. For
well-trained lawyers, the phrase is a locus of confusion and conflation (Schlag
2013).
Sometimes, of course, conceptual clarification (e.g., definition of terms) can
help. At other times, not so much. Why not? Well, because in law, the muddle,
and its attendant mutability, are often very much an aspect of the thing we are
trying to figure out. The upshot is that the otherwise admirable tendency of the
“serious academic” to strive for rigor through careful conceptual specification
can lead astray: It is possible to overshoot – that is to say, to clarify what cannot
or should not be specified and thus to miss what is happening. Arguably in law,
the muddle and the conflation are as essential to law’s identity as the clarity and
the precision. Indeed, it seems likely that both should be analyzed together:
The roles played by clarity and precision become fully understandable (if at
all) only in light of the roles played by the muddle and the conflation. And, of
course, vice versa. One suspects that the particular distribution or allocation
of clarity and muddledness (what types of things does law muddle and which
does it not?) matter as well.
The short of it is: Get rid of the muddle and the conflation, and there is a
good chance you will have missed your object – and transformed it into that
which it is not. Much of the work in analytic philosophy of law given over
to the “clarification” of concepts might well be charged with exhibiting this
kind of problem. It is, of course, likely that definitions and specifications will,
in some circumstances, help. The question, however, is not whether they can
help, but whether they can help sufficiently to do the work required without
doing the unwanted work – namely, without distorting the object of inquiry so
that it has effectively been evacuated from the scene of analysis and replaced
by some inadequate conceptual placeholder (Schlag 2009b).
What is at stake here – and this would require a much (much) longer
discussion – is nothing less than a sustained inquiry into the character of the
legal concept. What I would like to suggest for now is that a legal concept
is, inter alia, a more or less specific, more or less mutable organization and
clustering of determinations of different orders – social, normative, political,
linguistic, and so on (Schlag 2009b).
Multiple Temporalities
Legal analysts occasionally seem somewhat naı̈ve in terms of dealing with the
multiplicity of the times of law, history, and the social (Kojève 1980). In order
of roughly increasing complexity starting with stasis, we can describe legal
time in the following ways:
chronological (Hart 1959)

linear or exponential progression (Freeman 1981)
periodization (Ackerman 1993)
stages (Savigny 1975)
lag (Llewellyn 1934; Lukács 1971c)
evolution (Elliot 1985)
compression/decompression (Harvey 1990)
recycling (Kennedy 2011)
discontinuity (Foucault 1972)
(and more).
Perhaps it is the drive for consistency or the wish for coherence or simply
the mortal wish of the academic to say something enduring, but, whatever
the reason, legal thinkers seem allergic to recognizing the multiplicity of
temporalities affecting the object under inquiry (Bloom 2015; Postema 2015;
Unger 2009). Still less will they recognize the multiplicity of temporalities on
the side of the subject – namely as affecting their own approaches, methods,
and agendas.
Why the denial of multiple temporalities? One possibility is that the denial
of multiple temporalities, in the sense elaborated here, is essential to the self-
constitution of a discipline qua knowledge production enterprise. To put it
another way: The denial of time, in the sense described here, may simply be
necessary to the production and maintenance of a certain kind of “truth” (a
kind dear to academics). Indeed, if one wants to be “right” in saying something
at once relatively rigorous and enduring, it will help considerably if one can
presume that not only does the domain in question remain relatively fixed
over time, but so does the perspective of the observing discipline.
2 constitutive circularities?
These challenges and problems haunt the knowledge production enterprise
in law. Some of these challenges and problems are mere difficulties to be
confronted and negotiated. Others are more daunting. This is a contextual
matter (and I do not wish to get into it here). Suffice to say, however, that, in
444 Pierre Schlag
light of these challenges and problems, much that is produced in legal studies
under the banner of knowledge production has to be offered in the conditional
form. In other words, it has to be offered in the following way: “If we can honor
certain theoretical priors – in others words, if we can grant certain assumptions,
adopt the following methods, hold to certain commitments, then . . . ”
All right. OK. Sure. That’s what we have to do if we are going to do serious
intellectual work.
Well, no, actually.
Consider that if we are to be intellectually serious, attention has to be turned
on our theoretical priors. And as soon as we do that, it becomes apparent that
the theoretical priors we affirm are also subject to the challenges and problems
discussed above. Indeed to go further, among the most defensive disciplines
and subdisciplines (the kind that Imre Lakatos called “degenerative”) the
theoretical priors begin to include a belt of protective assumptions that serve
more as deflections of challenges and problems than as springboards for the
production or creation of new knowledge (Schroeder 1991). In advanced stages
of disciplinary degeneration, it can become apparent to those outside the field
that an approach is applied repeatedly to new data or new domains merely to
performatively reaffirm – in both the Austinian and the theatrical sense – the
axiomatic truths and frames of the discipline.
What must be recognized is that whether or not a work relates in a felicitous
manner to anything beyond the words on the screen is mediated by and
depends on the plausibility of the theoretical priors affirmed. To put it another
way, the conclusions reached in any knowledge production endeavor are only
as strong as the weakest epistemic links in the chains of that which is presumed.
Consider then that the crucial relation asserted by an academic work of
knowledge production in legal studies is not self-evidently between the knowl-
edge it offers and the “real world.” Rather, the relation is much more shallow:
It is a relation (or set of relations) between the knowledge offered and a repre-
sentation of the “real world” – one that is ironically often constituted, selected,
and tailored sub rosa by the very same operative assumptions, theoretical priors,
methods and commitments that structure the analysis. Hence, the perfect fit.
Hence also the perfect irrelevance of the perfect fit (Schlag 2013).
None of this should be taken too far, of course, lest we end up wandering
in an upside-down skeptical variation on Hegel’s “night in which all cows
are black.” It is not clear, however, that the Hegelian allegory is the most
appropriate one for legal thought in this moment. At this particular moment,
more helpful inspiration might be drawn from a different parable:
The situation is as though we stood in a small pool of light encompassed by

the vast darkness. Someone calls attention to the vast darkness; where is it, the
others cry, turning their torches out to light up and see the darkness, but of
course they see nothing but more and more illuminated areas. Nevertheless,
can we not be aware of this darkness as the limits of our light? . . . And now,
what if our small pool of light were itself darkness . . . ? (Earle 1955).
Exactly. What if?
3 so what? how it matters

There are different reasons to be concerned about all this. I would like to sketch
in a preliminary way how this matters from a variety of different cognitive
perspectives. I am trying to be ecumenical here: There are a good number of
different reasons to care about all this.
The Intellectual
It seems to be the bare minimum of an Enlightenment or a post-
Enlightenment orientation that we shouldn’t credit with the status of knowl-
edge that which is not. To the degree that knowledge production efforts claim
to “uncover” or “find” knowledge about law and its relations to the social and
the economic, they cannot legitimately do so by simply ignoring the challenges
and problems that would undo their claims to knowledge.
And yet the failure to acknowledge and confront the challenges and prob-
lems described above will often render the knowledge production enterprise
a kind of “knowledge by suspension of disbelief.” In turn, if the suspensions
of disbelief enable the belief to become materialized in law (sometimes they
will/sometimes not – it’s a question of context and degree) the knowledge pro-
duction enterprise reflexively re-registers those materializations as grist (or data)
to be processed by yet more knowledge production. Circularity is nothing if
not cheerfully self-validating.
The Aesthetic
What happens when a work of knowledge production fails because one or
more of the challenges and problems above goes unmet? What remains? Does
failed knowledge production automatically default to some more modest but
still worthy epistemic project – interpretation or edification or the like?
No. Not automatically.
Without going into detail, it seems evident that what is required of the
various genres of legal thought (knowledge, understanding, interpretation,
edification, etc.) differs somewhat across the genres. Knowledge production is
designed to yield certain results. In knowledge production efforts, the subject,
446 Pierre Schlag
the methods, the evidence, the structure of the argument (and more) have all
been selected and tailored to produce a definitive and if possible unassailable
piece of knowledge. The vexing thing is that the criteria and performances
that enable knowledge production to happen are often peculiar to the knowl-
edge production enterprise. These criteria and performances will often be
a hindrance, rather than a help, to the other kinds of epistemic projects –
understanding, interpretation, edification, and so on.
The upshot is that failed knowledge production does not default to some
more modest albeit still worthy endeavor. Predictably, it will often default
all the way down to words on the page, curves on the graph, or data in the
charts. Meaningless bytes wafting aimlessly in the vast ether of cyberspace –
the electronic dust of academia.
The Economic
In a famous article, Ronald Gilson describes how lawyers function as “trans-
action cost engineers” – structuring deals that maximize value for the parties
by economizing on transaction costs (Gilson 1984). There is much to be said
for this view – particularly if one takes existing law as the given baseline and
immediately retires it to the background as beyond scrutiny. Gilson was explicit
about doing this in his article – and doing so was fine for his project.
But from a broader perspective, positing such a baseline and putting it
beyond scrutiny obscures a question of major interest. Simply stated, the ques-
tion is whether existing law, in all its complexity, intricacy, and variegation, is
not itself a massive piling on of wasteful transaction costs? That question, of
course, immediately prompts another: Compared to what?
I propose not to answer either of these questions. It does bear pointing
out, however, that intuitively it seems possible (likely?) that the intricacy,
complexity, variegation, and elaborate layering of the positive law might not
get us very much in terms of limiting error costs relative to what we lose by way
of decision costs, drafting costs, negotiation costs, learning costs, and so on.
Knowledge production, of course, insofar as it aims relentlessly at account-
ing for and accordingly honoring intricacy, complexity, and variegation (this is
part of what we mean by “rigor”) very likely contributes to this phenomenon.
Indeed, knowledge production efforts seem to be dominantly, even if contin-
gently, oriented toward the production of ever greater intricacy, complexity,
and variegation.
The Just
Criticisms seem well justified that the costs of lawyers render lawyering services
unavailable to large portions of the population – the middle-class on down.
As a result of this “access to justice” problem, many just claims unavoidably

go unrecognized and unredressed. Viewed in dynamic terms, the absence of
redress will expose economically subordinate parties to further risk. Indeed,
in legal terms, to be poor means a systematic and indeed cascading exposure
to higher than average risk – risks of everything: bodily injury, illness, toxicity,
loss of income, crime, emotional disturbance (and so on).
Meanwhile, one reason lawyers are so costly is that the professional knowhow
in which they traffic is at once (1) protected by exigent licensing requirements,
and (2) organized in terms of knowledge production efforts that have greatly
added to the complexity, intricacy, and variegation of law. The complexity,
intricacy, and variegation demand a highly skilled (and increasingly special-
ized) workforce that in turn commands high prices. Moreover, the prolif-
eration of complexity, intricacy, and variegation yields a kind of “internal”
market expansion: Even if (counter to fact) law conquered no new domains,
it increases both its markets and prices through internal subdivision and var-
iegation. Not endlessly so, of course. And not without the risk of triggering
competition and entry from nonlawyer professions or technologies. But still.
The point here parallels the one in the last section: If knowledge production
is not what it is cracked up to be, if it just raises costs, then there isn’t much in
the way of justification for its propagation.
The Political
Consider a simple, in fact, astonishingly brute, pre-Foucaultian, but nonethe-
less provocative possibility – namely, that the distribution of wealth and power
in society is at least in part a function of the distribution of what has been
reduced to the order of the known and what has not. Think here very simplis-
tically for a moment of the known/not known in law as a ratio. That which
is considered known serves as the fixed points of the political and economic
order. It becomes nonnegotiable. Everything else is in principle more or less
up for negotiation or invention.
What I am suggesting here is that in law, at least, whatever is reduced to
the order of the known functions a bit like legal entitlements/disablements
as these are described in the work of Robert Lee Hale and Duncan Kennedy
(Hale 1923; Kennedy 1991; Schlag 2015). Reducing something in law to the
order of the known, then, is one way of taking it off the table – of putting it
beyond negotiation. If the act of reducing things to the order of the known
is itself flawed, then the recognition (or denial) that it is flawed becomes
acutely political – at least where the stakes are political. Why acutely?
Because the claims to fixity can no longer be redeemed on the grounds of
knowledge.
448 Pierre Schlag
Now, of course, law is not just politics, and what appears to various observers
or participants as political (or not) will vary not only according to the stakes,
but also according to the identities and roles of the relevant parties. Similarly,
much of law will frequently seem a lot more like documentation and account-
ing than politics – though note here that much of what is currently viewed as
documentation and accounting will often be yesterday’s politics freeze-dried
in today’s legal forms and data. But put that aside and move to the key point:
The contests over what can, should, or does count as knowledge in law is
in part a political question and a political struggle. Indeed, one might won-
der, at the limit (what limit?) whether in this context (law) knowledge and
politics can be disentangled sufficiently to articulate their relations with any
specificity?
Bracketing that difficulty, one would want to consider the ways in which a
knowledge production enterprise itself yields certain political tendencies rela-
tive to, say, the many other genres named at the beginning of this chapter. This
depends on the image of knowledge in place (i.e., the criteria for what counts
as knowledge). It also depends on who or what institutions are producing the
already constituted knowledge (i.e., the available data sets, the legal judgments,
etc.) to be processed by the legal thinkers.
The vexing thing here is that the academic commitment to knowledge
production can easily lead us to study what our methods enable us to know
even as we disregard the rest – even if, for law and for us, it is often “the
rest” that matters most. The indicated joke here (none too flattering for the
knowledge production enterprise) is the one about the inebriate who when
asked why he is looking for his keys under the lamp post declares, “Because
the light is better there.”
The Critical
This chapter could be seen as a critique in the old-fashioned sense of the
term – an inquiry into the conditions of possibility. The foregoing might be
seen as organized around a classic poststructuralist move – namely the demon-
stration that the conditions of possibility for knowledge production in law are
simultaneously the conditions of its impossibility. There has been, of course,
no proof of that. (Most of what is demonstrable in law by proof is relatively
uninteresting because it is either trivial and/or it depends on a highly rarefied,
formalized, and idealized concept of law.) All there is here in this chapter is
a laying out of the challenges and the problems together with the observation
that no one has resolved them yet in any satisfying way. This does not mean
that such resolution cannot happen, but rather that it has not.
It does seem, however, that if we are going to get anywhere in legal thought,
we can’t just hold these challenges and problems in perpetual abeyance. While
it may be true that one might want to avoid the “really big problems” of law
(i.e., the kind described here) because one cannot resolve them, it is also
surely true that the conventional strategy of tackling the many (many) small
problems of law doesn’t magically make the big ones go away.
And there is a frustrating irony here which often goes unnoticed: Most legal
academics who are working on the “small problems” don’t seem to recognize
(1) that they are not getting much of anywhere nor (2) that part of the reason
is that the smallness of their problems does nothing to insulate these from the
intractability of the big ones (e.g., the macro/micro difficulties). To be sure,
one can define a small problem in such a way as to avoid triggering any of the
big ones. But if you think a while about this strategy (epistemic gerrymandering
comes to mind), its problems will become apparent.
In any event, it seems that the challenges and problems described are the
intellectual conditions writ large that legal academics confront. Perhaps in the
end (this would a pleasing irony) that of which we can be most confident are
the failings of our own disciplinary knowledges.
Notice that this is not nothing. On the contrary, the challenges and problems
could be retrieved from their relative obscurity and placed front and center
in legal thought. The challenges and problems could then serve as vantages
from which to organize and think about what can and ought to be done with
legal thought, law, judging, and the like. With the challenges and problems
exposed, we would be enacting a kind of flip: Instead, of starting with law’s
“certainties” and building from there, we could now place the challenges and
problems center stage and try to figure out what to do with legal thought, law,
judging, and so on.
This would likely lead, at the analytical level, to a deformalization of legal
thought and to a greater onus on the exercise of aesthetic, political, and
normative judgment. And it would be, of course, dissonant with the pretense
to certainty of the juridical style that remains so dominant in academic legal
writing. But such developments, in my view, would be salutary – even if
unwelcome in some quarters.
In addition, I believe that it is a positive good, at least for those who wish
to be serious legal intellectuals, to be aware of the challenges and problems
described above (as opposed to not). Why? Because it is all the things that we
claim matter – the consequences, implications, effects, and values of law – that
are put at stake by these challenges and problems. If we cannot resolve the chal-
lenges and problems, then we ought to work toward intellectual approaches
that accord them a visible role. In other words, the challenges and problems
450 Pierre Schlag
should take center stage, and our resultant approaches and methodologies
ought to be framed in light of the epistemic limitations posed by these prob-
lems. To put it all too crudely, we should probably move away (not entirely)
from viewing law as a science and more as a creative endeavor. There is yet
one more reason to conclude that such a move might be warranted.
conclusion
In the United States, it is widely understood, at least among the intelligentsia,
that nearly all major U.S. institutions (government, market, law, media, jour-
nalism, education) are structurally compromised – given to delivering an
image of the goods as opposed to the goods themselves. The logic of the
market is apparently irresistible: At some point on the cost curves, finance
becomes less costly than production. Colonization becomes less costly than
creativity. Regulatory arbitrage becomes less costly than compliance. Rent
seeking becomes . . . And so on.
In response to this degenerative substitution, the great institutions of state
and civil society (many of them already sclerotic bureaucracies) have tried to
respond by adopting quality control measures. Not surprisingly, these quality
control measures are themselves carriers of the same degenerative logic. In
the main, quality control has consisted of substitution for qualitative evalua-
tion certain “objective” accountability measures such as “metrics,” “rankings,”
“benchmarks,” “target goals,” and other indicators. Yet more image. Yet more
mediocrity. In terms of legal institutions (courts, law schools, law firms) even
our rhetoric has moved from the rule of law to the rule of indicators. This is
now the logic of a spiraling degeneration.
And yet . . . degeneration has hardly been universal. Strikingly, in this
moment – the one described in the last two paragraphs – the elites of the
U.S. legal academy are tying themselves to the mast of knowledge production
(LoPucki 2016). The ascendance of knowledge production, despite challenges
and problems presented here, is impressive. Indeed, let’s recall the more
upbeat description of this genre in the opening pages of this chapter: “Knowl-
edge production celebrates mastery and expertise . . . Knowledge production
is sophisticated, technically rigorous, methodologically scrupulous, and theo-
retically conversant.” In one sense (and this is hardly faint praise) one wants
to cheer: “Well done! Way to buck the trends, people!”
There is clearly something to this. Some contemporary efforts at knowledge
production are remarkable in their intellectual and aesthetic brilliance as well
as in their studied professionalism. Indeed, they are often much (much) more
sophisticated than say, the work done twenty or thirty years ago (Posner 2009,
2016).
And yet here, too, there is a dark side.

If what I have been saying throughout this chapter has some bite, then
one can’t help but wonder: Is this really a propitious time for knowledge
production? Is this really the time to try to seek out certainties – apodictic or
otherwise? To bank heavily on acutely refined methodological refinements?
To go for the really certain albeit really small thing?
Maybe so. But I doubt it. Consider instead another possibility – that
in this moment of pervasive (if not intractable) flux and transformation,
where cultural, social, and economic developments seem to vastly outpace
our intellectual efforts at integration, the knowledge production strategy
seems strangely inapt, oddly untimely. Indeed, all this academic paradigm
compliance is happening at a time when the situation would seem to
require something closer to the opposite – namely, efforts at reconnaissance,
experimentation, and creativity.
In the end, one begins to wonder whether all this knowledge production in
law is not a massive knowledge bubble?
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The Knowledge Bubble Something Amiss in Expertopia

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22

The Knowledge Bubble: Something Amiss in Expertopia

This chapter is an effort to consider some theoretical challenges and problems

the much more encompassing meaning in vogue in the general literature on

the resurgence of analytic philosophy – all of these tendencies and many

(1) chances are it is likely an effort at knowledge production, and

1 the diagnostic – challenges and problems

The Paradox of Inquiry

The Divisibility Problem

Stabilized, Stand-Alone Preexisting Divisions of Law

in “live fields” of policy/principle/values/considerations/interests/ institutional

Imposition of Extralegal Divisions

Multiple Modes of Entailment

X somehow yields Y. Notice that where law is concerned, X might yield Y in

Identity Problems: Incomplete Formalization

of various determinations sounding in social, normative, political, linguistic,

chronological (Hart 1959)

The situation is as though we stood in a small pool of light encompassed by

Exactly. What if?

3 so what? how it matters

As a result of this “access to justice” problem, many just claims unavoidably

And yet here, too, there is a dark side.

works cited – chapter 22

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