T3 Jedi

Episode 98 · May 20th, 2016 · 1 hr 20 mins

About this Episode

Like living things, legal theories are born, grow, change, and die. We are joined by Jeremy Kessler and David Pozen to discuss this life cycle and how it applies to some popular theories today, like originalism. We start by discussing what prescriptive legal theories are and how there was a move to transcend politics through process-based theories (3:23). Then: the theory of theories (9:31), the example of Brown v. Board, originalism, and brute political facts (20:17), a sociological story (25:10), the role of law schools and teaching in theory evolution (31:22), a discussion of trees, structure, and the role of higher order principles in law (37:50), theory change in private law (47:14), normative vs. descriptive theories of theories (54:05), and the internal and external approaches to originalism (1:04:27).

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