Concepts before Percepts: The Central Place of Doctrine in Legal Scholarship

Modern legal scholarship often relegates doctrinal work to a lower-status tier than empirical research, economic modeling, and philosophical speculation. That move is a big mistake. It is only by knowing how cases fit together with each other and with some overarching theory of social welfare that it is possible to be sensible in applying current doctrine to legal disputes and in formulating alternative approaches. Initial theoretical mistakes cannot be cured by their repeated application, which only renders the law more confused and indeterminate than before.

The consequences of root error are accordingly examined in three areas: consequential damages, personal jurisdiction, and constitutional standing. Basic errors in each of these areas lead to major distortions of legal doctrine, which in turn lead to undesirable social outcomes.