Introduction
Sometimes a case is referred to as "canonical." It is one of the cases that is clearly correct. Brown v. Board is frequently cited as a canonical case. Other times, the opposite point is made: a case is call "anti-canonical." It is clearly wrong. An example is Lochner v. New York. But what is the theoretical force of these moves? And what accounts for the canonical or anti-canonical status of a case? Do cases move in and out of the canon and anti-canon? How and why? Is the argument that a theory is inconsistent with a canonical a "conversation stopper"? Or can one argue that a canonical case was wrongly decided?
Most of the discussion in this brief Lexicon entry will use constitutional law examples, but the the idea is more general than that. There are canons in contracts, torts, property, and administrative law, but most of the discussion of the idea of canonical and anti-canonical cases has occurred in the context of constitutional law.
This entry in the Legal Theory Lexicon discusses the idea that some cases are canonical and others are anti-canonical. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
Canonical Cases
The paradigm case of a canonical case is Brown v. Board of Education. For example, Cass Sunstein has written:
[I]t seems clear that to have a claim on lawyers' attention, any serious theory of constitutional interpretation must be able to explain why Brown was right. In this sense, Brown is part of the canon of constitutional law. (Sunstein, 23)
There is no set list of canonical cases, but other candidates for the constitutional canon include Marbury v. Madison, McCulloch v. Maryland, and West Virginia State Board of Education v. Barnette. These are the cases that are included in almost every constitutional law course, that every educated lawyer is expected to know, and that the Supreme Court is very unlikely to overrule or disapprove, even in dicta or a dissent.
Anti-Canonical Cases
Jack Balkin suggested the idea of an "anti-canon" in a law review article in 2005.
Law is distinct from other subjects with a canon, like literature, because it also has an anti-canon - a set of cases and materials that must be wrong. Anti-canonical cases serve as examples of how the Constitution should not be interpreted and how judges should not behave. (Balkin, 2005)
The anti-canon includes Plessy v. Ferguson, Dred Scott, and Lochner v. New York. Every lawyer is expected to know that these cases were wrongly decided. The Supreme Court never cites them with approval.
The Relationship of the Canon and the Anti-Canon to the Role of "Fit" in Legal Theory
The canon and the anti-canon play many roles in legal discourse, but this Lexicon entry is focused on the way that the idea of canonicity works in normative legal theory. One way to understand that role is via Ronald Dworkin's notion that legal content is a function of the theory that best fits and justifies the legal materials as a whole. There is a separate Legal Theory Lexicon entry on this idea: Legal Theory Lexicon 032: Fit and Justification.
Canonical cases are the cases that a normative theory of the law must fit: for example, a theory of the Equal Protection Clause must justify Brown v. Board. Likewise, a normative theory of law must condemn the anti-canonical cases. For example, a theory of Equal Protection cannot be consistent with Plessy v. Ferguson. Dworkin use the metaphor of "gravitation force" to describe the way precedent works: we might say that canonical cases have tremendous gravitational force and that anti-canonical cases have the opposite effect, a sort of repelling force.
Reflective Equilibrium
A more theoretical way to think about canonicity is via John Rawls's notion of reflective equilibrium. Again, there is a Lexicon entry: Legal Theory Lexicon 069: Reflective Equilibrium. The method of reflective equilibrium begins with our current set of beliefs--our moral theories, the moral principles we accept, and our judgments about particular cases. We look for contradictions and inconsistencies and then revise. These revisions might operate at the level of particulars--we might change our mind about a particular case (real or hypothetical) because it seems inconsistent with a general principle. Or the revisions might go the other way. We might discover that a moral theory or principle that seemed correct is inconsistent with firmly held beliefs about particular cases. By working back and forth, between and among our beliefs at various levels of generality and particularity, we might eventually reach a state in which all or almost all of our moral beliefs were consistent and mutually supporting--in other words, a state of reflective equilibrium.
Canonical cases express our strong intuitions about cases that are rightly decided. When we construct legal theories using the method of reflective equilibrium, our working hypothesis is that the theories must be consistent with and supportive of the canonical cases--and inconsistent with the anti-canonical cases.
What Accounts for Canonical or Anti-Canonical Status?
Why are some cases canonical and others anti-canonical? That's a big question, but here are some tentative ideas.
Casebooks
One possibility is that the canon is produced by the system of legal education. Some cases are in every casebook--or almost every casebook. Of course, this just pushes the story back one step. How do cases get in the casebooks? It might be that there is a lost of path dependency is the selection of cases: Legal Theory Lexicon 062: Path Dependency An early casebook includes a case; subsequent casebooks copy some of the case selection of the early book. Now the case is in several books, and this leads subsequent writers to believe that they must include the case.
Citations
Another possibility is the canonicity is produced by the network of case citations. Canonical cases are cited a lot, but anti-canonical cases are not frequently cited. This hypothesis could be tested empirically. I am a bit skeptical that citation is really doing the work--in part, because the causation could easily work the other way, with canonicity and inclusion in casebooks being the cause of the citation counts.
Normative Evaluation
Another idea is that cases are in the canon because they are normatively attractive and that anti-canonical cases are those that are especially bad from the normative point of view. There is surely something to this idea. It seems quite likely that Brown is in the canon because it is viewed as morally right and that Plessy is in the anti-canon because it is morally wrong. But this may be a necessary but not sufficient condition. There are many morally attractive cases that are not canonical, and many very bad cases that are mostly forgotten.
Narratives
Another promising idea is that canonical status is conferred by narratives--stories that are told about the law. Brown is in the canon because it is part of a constitutional narrative of the progress of justice. Plessy is in the anti-canon because it is part of a narrative about the subversion of Reconstruction and the triumph of racism. Narratives are influenced by politics and ideology. The dominant constitutional narrative was surely changed by the New Deal in one way, but then changed again by the Reagan Revolution. There is a Lexicon entry on narrative in legal theory: Legal Theory Lexicon 080: Narrative and Normativity.
Multiple Pathways to the Canon and Anti-Canon
Of course, it may well be the case that there are multiple pathways and complex causes. The canon may in part be a product of historical accidental, while it is, at the same time, also constructed by historical narratives and the citation practices of the Supreme Court. Each of these causes may influence the others.
Moving In and Out of the Canon and Anti-Canon
One of the most interesting questions about canonicity is whether it is possible for cases to change their canonical or anti-canonical status. Lochner is current an anti-canonical case, but it is at least imaginable that it might one day be moved out of the anti-canon.
To the extent that narratives shape canonicity, it may well be the case that new narratives can move cases in or out of the canon or anti-canon. For example, many important cases occurred during era when racism, colonialism, sexism, and other negative forces played a role in shaping the decisions of the Supreme Court. If a formerly, neutral is recast by a debunking narrative, it might be moved to anti-canonical status. Likewise, a case that that had seemed unimportant might be moved into the canon by a vindicating narrative.
Skepticism About the Canon and Anti-Canon
The discussion so far has taken canonicity for granted, but it could be argued that canonicity should not have normative force. The normative status of a case might be based on strong intuitions. If those intuitions are supported by reflective equilibrium, then they can become "considered judgments," to use Rawls's phrase. But the notion that our judgments about cases are unquestionable seems suspicious. It is one thing to say, that our belief that Brown was correct is strongly supported by reason. It is quite a different thing to say that our evaluation of Brown cannot be questioned or subject to reasoned evaluation. The appeal to canonical cases as a matter of rhetoric and persuasion is one thing; arguing from canonical cases may be effective. But the use of canonical cases to put an end to argument and to avoid the engagement of reason is something quite different. The very fact that the canon changes over time suggests that the questioning of canonical cases is a legitimate move in legal theory.
Sometimes, a canonical case is used as a conversation stopper. Someone argues, "Your theory is inconsistent with Brown v. Board. Game over. You lose." In this crude form, the argument from canonical cases is not a very good argument. As stated, there really isn't even a reasoned argument at all, but rather, it is a rhetorical move. But this does not mean that there isn't a better version of the argument. "Your theory is inconsistent with Brown v. Board. There is a widely shared and deeply held belief that Brown was rightly decided. The burden of persuasion is on you to explain why your theory is correct, despite this powerful evidence to the contrary."
Theory Dependent Canonical Status
Another perspective on the idea of canonicity is provided by introducing the possibility that canonicity is theory dependent. That is, the obvious correctness or incorrectness of a particular decision is relative to a normative legal theory. For example, if decision is constitutional, the relevant normative theories would include originalism and living constitutionalism, in their various forms. Brown v. Board might be a canonical case for living constitutionalists, but the question whether it is correct might be less clear from an originalist perspective--even if most originalist believe that Brown was correctly decided.
Once the notion that canonical status is theory dependent is introduced, it seems hard to resist. Canonicity and anti-canonicity are judgments that must be made from some normative perspective. If, at the end of the day, a case that once seemed canonical turns out to be inconsistent with the dominant normative theory, it seems highly unlikely that it will retain its status as unquestionably correct. Seen in this light, the prominence of the canonical cases argument in constitutional theory might be seen as a symptom of the rise of originalism and the decline of living constitutionalism. New Deal decisions like Wickard v. Filburn seemed unquestionably correct at the height of living constitutionalism during the late Warren Court and early Burger Court eras, but after the rise of originalism in the 1980s, these decisions seem questionable, even if the Court is unlikely to overturn them anytime soon.
Conclusion
There is much more to be said about canonical cases, but I hope this Lexicon entry has gotten you started. There is quite a literature on this topic, but the bibliography provides you an entry point. I especially recommend Jamal Green's The Anticanon and Balkin and Levinson's The Canons of Constitutional Law.
Bibliography
Jack M. Balkin, "Wrong the Day It Was Decided": Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677, 681 (2005)
J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1998)
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011)
Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 Duke L.J. 243 (1998)
Cass R. Sunstein, In Defense of Liberal Education, 43 J. Legal Educ. 22, 23 (1993)
Related Lexicon Entries
- Legal Theory Lexicon 003: Hypotheticals
- Legal Theory Lexicon 016: Positive and Normative Legal Theory
- Legal Theory Lexicon 032: Fit and Justification
- Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
- Legal Theory Lexicon 069: Reflective Equilibrium
- Legal Theory Lexicon 080: Narrative and Normativity
(Last modified on September 11, 2022.)
