Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. This distinction also appears in legal doctrines. Some do one thing and are meant to do it very well. Other doctrines do many different things. They serve multiple functions, though perhaps all imperfectly. Indeed, this is often a basis for criticism. Scholars have criticized many legal doctrines -- from the constructive trust to the Erie doctrine, from the irreparable injury rule to the standing requirement, from the collateral source doctrine to strict scrutiny -- on the grounds that they serve multiple purposes and are therefore incoherent. By contrast, judges seem to prefer these multi-function doctrines. They resist the scholarly projects of deconstruction and specialization. This Essay considers that contrast in perspective, and it explores the differences between single-function and multi-function doctrines. These differences include the type of decisions that must be made, the possibility of expertise, adaptability over time, and the relative burdens on the designer and the user.Bray's essay is approachable, interesting, and enlightening. It is only nine pages long. I'm posting this on the eve of a holiday weekend. You have no excuse not to read the whole thing.
Wednesday, November 26, 2014
Bray: "On Legal Doctrines That Do Many Things"
Through Lawrence Solum's Legal Theory Blog, I learned of this excellent essay that Samuel Bray recently posted on SSRN. Its title is On Doctrines That Do Many Things. Here is the abstract: