So, in the wake of finishing my latest article, I’ve been thinking about doctrinal silos—areas where principles have evolved in ways that don’t conform to mainstream understandings developed elsewhere.
Siloing is a particular problem in the constitutional law of civil procedure. It’s one that is explored
Comments
David: As a professor who does both civ pro *and* some con law (particularly free speech), I’ll own the mess in both areas. So, too, would Redish.
Posted by: Howard Wasserman | Aug 24, 2012 12:37:15 AM
Are these Con Law professors who are so exalted over we Civ Pro professors in earlier posts proud of “their” work on the Religion Clauses, Free Speech (Citizens United), Second Amendment, etc, etc. Good things those doctrines aren’t “a mess”! Thanks to all you Con Law folks for avoiding such problems 🙂
Posted by: David Levine | Aug 23, 2012 2:01:53 AM
Howard: Thanks for the head’s up on Redish’s piece. I agree Burnham might fit in that category (I didn’t add it because the post was already running too long as it was). But I agree that both Brennan and Scalia were using Burnham to skirmish, in particular, with an eye on the fate of Roe–Casey was still over the horizon in 1990. And when Burnham was decided, anxiety that Bush Sr. would be appoint the fifth vote to overturn Roe was becoming intense.
Bruce: I agree, at least w/r/t to larger con law issues (federalism, due process etc.) that intersect with procedure–I’d also prefer to see more coherence across doctrines.
Posted by: Mark Moller | Aug 22, 2012 8:36:36 PM
The lack of doctrinal consistency, or consistency with the text of the Rules, might float for now, but it is laying minefields for later.
Posted by: Bruce Boyden | Aug 22, 2012 11:10:27 AM
Marty Redish made arguments similar to Allan’s in talking about the Seventh Amendment civil jury; it was a mess because it had been delegated to procedural professors rather than con law professors.
As another example of civ pro in your beachhead category, that somewhat explains the dispute between Brennan and Scalia in Burnham–it was a fight about what due process should mean in a case decided in Brennan’s last term on the Court and Scalia’s fourth.
Posted by: Howard Wasserman | Aug 21, 2012 10:54:53 PM