Just in time for the start of the academic year, Christian Turner — Georgia Law prof and co-host, with his colleague Joe Miller, of the entertaining-yet-intellectually-nutritious Oral Argument podcast — has this blog post on what he calls “leveling up in legal thinking.” Christian articulates four increasingly sophisticated levels on which we might consider legal resolutions of disputes. Go read his post, but here’s my attempt at shorthanding those levels (I’ve added Level 0 for the sake of symmetry and completion):
- Level 0: The outcome of this dispute should be O.
- Level 1: The outcome of this dispute should be O because rule R (e.g., negligence obtains when a breached duty of care proximately causes compensable damage).
- Level 2: Rule R should determine the outcome of this dispute because of principle P (e.g., efficiency; fairness; market failure) that justifies rule R.
- Level 3: This dispute is appropriately resolved (i.e., the choosing of R and P should be done) by institution I (e.g., trial court, appellate court, legislature, agency, the people via referendum).
- Level 4: Institution I is the appropriate entity to resolve these types of disputes because theory of institutional choice T (e.g., comparative institutional competence to apply principle P and/or develop its informational inputs; separation of powers; legitimacy of decision-making by (un)elected decision-makers).
As Christian suggests, most of these reasons and meta-reasons will be familiar to law students by the end of their 1L year, but articulating a framework for how they relate to one another allows students to “see what they already know but have usually not yet thought to acknowledge.” As Christian also notes, one additional payoff of articulating different levels of analysis is that is helps us isolate where our disagreements really reside.
Christian notes that his discussion of these levels is part of a first draft of “an introduction to a more general legal theory” on which he’s working. I’ll look forward to that. In the meantime, the leveling up section may be of particular interest to those who teach 1Ls (or teach law to non-law students), to entering law students, and to law students writing case comments and similar first journal pieces. On the latter audience, I recall from my law review days being told to think of case comments (both the actual ones we wrote and edited for publication as well as the quick and dirty ones we wrote and, later, graded, as part of the law review write-on process) as having one of the following structures: right decision, wrong reason; wrong decision; right reason; or wrong decision, wrong reason (right decision, right reason was conceptually possible but to be avoided). In some ways, Christian’s four levels strike me as an expanded framework for analyzing the appropriateness of legal outcomes (and, I’d add, policy outcomes more broadly, whether or not they have the force of law).