Charles L. Barzun (University of Virginia School of Law) has posted Getting Substantive: A Response to Posner and Vermeule (University of Chicago Law Review Dialogue, Vol. 80, p. 267, 2013) on SSRN. Here is the abstract:
In their article, Inside or Outside the System?, Professors Eric Posner and Adrian Vermeule take various legal scholars to task for committing what they call the “inside/outside fallacy.” The fallacy arises when a legal analyst adopts two, seemingly inconsistent methodological perspectives. First, she identifies and diagnoses some institutional problem from the “external” perspective of a political scientist who assumes that government officials act rationally so as to maximize their own self-interest. Then she switches to the “internal” perspective of a judge and offers as a solution to the problem one that requires judges to act in a public-spirited manner, thereby contradicting the assumption on which her initial diagnosis was based. According to the authors, the “methodological schizophrenia” that results from trying to combine these two perspectives in this way pervades contemporary legal scholarship.
This essay responds to the charges leveled by Professors Posner and Vermeule. It argues that although the authors correctly observe that the assumptions on which much political science is premised stands in some tension with those on which much legal theory is based, their framing of the issue as one between “internal” and “external” perspectives profoundly exaggerates and mischaracterizes the defects of the types of argument they attack. Once that misleading terminology is peeled away, it becomes apparent that the Authors’ interlocutors have not so much committed a “fallacy” as they have adopted substantive positions about the nature of law or views about how judges decide cases with which the authors disagree. Thus, despite the authors’ repeated claims that they remain agnostic with respect to the underlying substantive issues at stake, in fact their argument depends on controversial philosophical and empirical premises. That the authors themselves end up committing the same “fallacy” they find in others’ work only further confirms the futility of trying to cleave methodological questions from the underlying debates about law and judicial behavior.