ABOUT THIS BOOK

Legal doctrine—the creation of doctrinal concepts, arguments, and legal regimes built on the foundation of written law—is the currency of contemporary law. Yet law students, lawyers, and judges often take doctrine for granted, without asking even the most basic questions. How to Do Things with Legal Doctrine is a sweeping and original study that focuses on how to understand legal doctrine via a hands-on approach. Taking up the provocative invitations from the “New Doctrinalists,” Pierre Schlag and Amy J. Griffin refine the conceptual and rhetorical operations legal professionals perform with doctrine—focusing especially on those difficult moments where law seems to run out, but legal argument must go on. The authors make the crucial operations of doctrine explicit, revealing how they work, and how they shape the law that emerges. How to Do Things with Legal Doctrine will help all those studying or working with law to gain a more systematic understanding of the doctrinal moves many of our best lawyers make intuitively.

AUTHOR BIOGRAPHY

Pierre Schlag is distinguished professor at the University of Colorado and the Byron R. White Professor at Colorado Law. His books include The Enchantment of Reason and Laying Down the Law. Amy J. Griffin professor of legal writing and the associate dean for instructional development at Colorado Law.

REVIEWS

"Two talented legal thinkers have put their minds to making a taxonomy of taxonomies! . . . For the benefit of all who read How to Do Things with Legal Doctrine, the book masterfully restates and improves received wisdom on how legal analysis works to create doctrine, but also adds many of its own insights. . . . this is an elegant, useful volume. I highly commend it as a good read."

— Journal of Legal Education

"How to Do Things with Legal Doctrine would be a welcome addition for academic law library collections. It provides a comprehensive discussion of legal doctrine and related concepts."

— Canadian Law Library Review

TABLE OF CONTENTS

I. The Big Picture

A. Artifacts
B. Sources of Law
C. Functions

1. Structuration
2. Defusing, Resolving, or Extinguishing Conflict
3. Correction
4. Realization of the Legal System
5. Reflexivity

D. Legal Elements

1. Legal Persons
2. Entitlements and Disablements
3. Attribution Rules
4. Transfer Mechanisms
5. Interests/Harms
6. Remedies

II. Doctrine

A. The Characteristics of Doctrine
B. The Structured Elasticity of Doctrine

III. The Itinerary

I. Entry-Framing
II. Broad vs. Narrow Time Frames
III. Segmented vs. Continuous Transactions
IV. Action vs. Omission
V. Level of Abstraction
VI. The Theater Metaphor
VII. Exit-Framing

I. Baseline Selection Problems

A. Classic Baselines
B. Variations within a Single Baseline

1. Level of Abstraction
2. Individualization
3. Multiplicity

II. Baseline Neutrality Problems

A. Failed Neutrality
B. Denial and Evasion

III. Baseline Collapse Problems
IV. Summary

I. What Do Legal Distinctions Do?
II. Three Criteria for “Sound” Legal Distinctions

A. Conceptual Intelligibility
B. Practicality
C. Normative Appeal

III. The Trade-Offs among the Three Criteria
IV. The Classic Flaws and Why They Matter

A. The Classic Flaws

1. Overbreadth
2. Underbreadth
3. Overlap
4. Discontinuity
5. False Dichotomy
6. Incoherence
7. Vagueness

B. Why the Classic Flaws Matter: From Form to Substance

1. Waste
2. Fairness/Equality
3. Subversion
4. Efficiency
5. Rule of Law

VI. Crafting Legal Distinctions
VII. Where Do You Draw the Line?

A. The Non-ideal World and the Inevitable Trade-Offs
B. Arbitrariness
C. Indivisibilities
D. Dynamic Fields
E. Problem Fields and Non-fields: Of Polycentricity and Flux
F. The Slippery Slope

VIII. The Fetishism of the Legal Distinction

I. Defining Rules and Standards
II. The Rules vs. Standards Dialectic

A. Deterrence
B. Delegation
C. Communication/Formalities/Notice

III. The Substantialized Versions of the Dialectic
IV. The Limitations of the Dialectic

A. Of Vices and Virtues
B. The Polycentricity Challenge
C. The Epistemological Twist

V. The Irreducibility of the Dialectic

I. Techniques

A. Hierarchy
B. Sectorization
C. Policy Judgment
D. Balancing
E. Meta-quantification Approaches
F. Conflict Prevention Approaches
G. Referral/Deference/Denial
H. Channeling

II. Putting It Together

A. Hybrids
B. Entailments
C. Summary

I. The Interpretive Situation: Recurrent Tensions and Conflicts

A. The “Legal” in the Legal Text
B. The Interpretive Contexts

1. Fact-Rich
2. Institutionally Localized
3. Procedural Posture
4. Discernible Specific Consequences

C. The Textual Feedback Loop
D. The Plurality of Contexts

1. The Context of Application
2. The Authorial Context
3. The Addressee Context
4. The Functional Legal Context
5. Contexts Generally

E. Fidelity to the Original Meaning
F. Summary

II. Textualism

A. Individuation: What Is the Unit of Interpretation?
B. Intratextual Integrity
C. Intertextual Integrity

III. Purposivism

A. Multiple Purposes
B. Selection
C. The Structure of Purpose

IV. Summary

I. A Cautionary Note
II. The Structural Distinction Clusters
III. How the Clusters Matter

A. The Clusters as Classic Options
B. Nuance: Substituting One Distinction or One Term for Another
C. Cluster Functions

1. Function Tags for the Choice/Coercion Cluster
2. Function Tags for the Public/Private Cluster

IV. Operationalizing the Clusters: Interaction

A. Combining Clusters
B. The Theatrical Metaphor

V. The Logic of Dissociation

A. Chaining: Running an Argument through Successive Clusters
B. Cluster Alliances

VI. Cluster Logic

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