Let "The Fundamental Things Apply": Necessary and Contingent Truths in Legal Scholarship

Abstract

This Symposium is devoted to understanding methods and trends in legal scholarship. At one level, there is very little new to report. Huge portions of legal scholarship as practiced in the academy are devoted to the routine tasks of lawyers. Nothing that we say or write here will, or should, alter the brute fact that much academic scholarship services the internal operations of the legal profession. Astute trial and appellate lawyers seek to modify legal doctrine to advance their own cases; judges try to sort out sound from spurious claims; and legal scholars chronicle the development of law in both its positive and normative dimensions. Lawyers revise restatements, draft legislative reports, and write academic critiques of judicial decisions and legislative and administrative programs. They take as given the fundamental premises of the system, whether explicit or implicit, and then seek to work out their implications in new areas, such as railroads and oil and gas in the nineteenth century or the electromagnetic spectrum and cyberspace in the twentieth.' In discharging their professional obligations, lawyers usually examine social theory not as an end in itself, but as one means among many to resolve those interstitial cases that crop up in any system of rules. Lawyers use social policy to smooth out a statute with some roughness about its edges or to tie together a line of cases that does not otherwise connect. One classic illustration of this technique is the mimeographed Hart and Sacks materials on the legal process, which begins a general analysis of contract law with the question of who took the risk of loss for some spoiled cantaloupes.2 Indeed, much of my own early scholar-