How to Do Things with Legal Doctrine

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.

Table of Contents:
Introduction Chapter One: What Is Doctrine? I. The Big PictureA. Artifacts B. Sources of Law C. Functions1. Structuration 2. Defusing, Resolving, or Extinguishing Conflict 3. Correction 4. Realization of the Legal System 5. ReflexivityD. Legal Elements                                                                                                 1. Legal Persons 2. Entitlements and Disablements 3. Attribution Rules 4. Transfer Mechanisms 5. Interests/Harms 6. RemediesII. DoctrineA. The Characteristics of Doctrine B. The Structured Elasticity of DoctrineIII. The Itinerary Chapter Two: Frames and Framing 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 Chapter Three: Baselines I. Baseline Selection ProblemsA. Classic Baselines B. Variations within a Single Baseline1. Level of Abstraction 2. Individualization 3. MultiplicityII. Baseline Neutrality ProblemsA. Failed Neutrality B. Denial and EvasionIII. Baseline Collapse Problems IV. Summary Chapter Four: The Legal Distinction I. What Do Legal Distinctions Do? II. Three Criteria for “Sound” Legal DistinctionsA. Conceptual Intelligibility B. Practicality C. Normative AppealIII. The Trade-Offs among the Three Criteria IV. The Classic Flaws and Why They MatterA. The Classic Flaws1. Overbreadth 2. Underbreadth 3. Overlap 4. Discontinuity 5. False Dichotomy 6. Incoherence 7. VaguenessB. Why the Classic Flaws Matter: From Form to Substance1. Waste 2. Fairness/Equality 3. Subversion 4. Efficiency 5. Rule of LawVI. 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 SlopeVIII. The Fetishism of the Legal Distinction Chapter Five: Rules and Standards I. Defining Rules and Standards II. The Rules vs. Standards DialecticA. Deterrence B. Delegation C. Communication/Formalities/NoticeIII. The Substantialized Versions of the Dialectic IV. The Limitations of the DialecticA. Of Vices and Virtues B. The Polycentricity Challenge C. The Epistemological TwistV. The Irreducibility of the Dialectic Chapter Six: Resolving Regime Conflicts I. TechniquesA. Hierarchy B. Sectorization C. Policy Judgment D. Balancing E. Meta-quantification Approaches F. Conflict Prevention Approaches G. Referral/Deference/Denial H. ChannelingII. Putting It TogetherA. Hybrids B. Entailments C. Summary Chapter Seven: Interpretation I. The Interpretive Situation: Recurrent Tensions and ConflictsA. The “Legal” in the Legal Text B. The Interpretive Contexts1. Fact-Rich 2. Institutionally Localized 3. Procedural Posture 4. Discernible Specific ConsequencesC. The Textual Feedback Loop D. The Plurality of Contexts1. The Context of Application 2. The Authorial Context 3. The Addressee Context 4. The Functional Legal Context 5. Contexts GenerallyE. Fidelity to the Original Meaning F. SummaryII. TextualismA. Individuation: What Is the Unit of Interpretation? B. Intratextual Integrity C. Intertextual IntegrityIII. PurposivismA. Multiple Purposes B. Selection C. The Structure of PurposeIV. Summary Chapter Eight: Cluster Logic I. A Cautionary Note II. The Structural Distinction Clusters III. How the Clusters MatterA. The Clusters as Classic Options B. Nuance: Substituting One Distinction or One Term for Another C. Cluster Functions1. Function Tags for the Choice/Coercion Cluster 2. Function Tags for the Public/Private ClusterIV. Operationalizing the Clusters: InteractionA. Combining Clusters B. The Theatrical MetaphorV. The Logic of DissociationA. Chaining: Running an Argument through Successive Clusters B. Cluster AlliancesVI. Cluster Logic   Coda: The Topics of Doctrine Acknowledgments Notes Index

About the Author :
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.

Review :
"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." "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."