Having been raised in the Catholic Church, and persisted in that universe of discourse, I think I know how an idea becomes a Doctrine. E.G. Aristotle - after the tragedy of the fire at the Alexandria library - is rediscovered, comprehended, recognized, and absorbed by Thomas Aquinas. Aristotelian dualism is embraced at a Council of Bishops at Trent, and the Doctrine of Transubstantiation recognized as fundamental, leading ultimately to Galileo being censured, not for his departure from dualism, but for the unrelated embrace of the erroneous and therefore heretical Copernican astronomy, instead of the conventional, but indisputably imperfect Ptolemaic vision. Better to be wrong about the stars, than about essences and accidents. [Pietro Redondi, Galileo - Heretic]
So there we have it. The strengths and weaknesses of Doctrine.
But now we labor under the Council of Six, weaned on talk radio, Leo Strauss, Ayn Rand, and the Federalist Society. What it takes to become a doctrine, is a couple of pretty easy cases that suggest that a dramatic expansion of a plain vanilla phrase in a statute is not enough of a foundation.for a new bureaucratic structure - even one that is intended to save hundreds of thousands from emphysema, lung cancer, and other suffering. Brown & Williamson v. FDA (1999) From that seed a mighty oak grows. A governmental policy - with a plausible, or plain reading of a statute to support it, must be stricken because it presents a Major Question to which a Congress thirty, forty, fifty, or sixty years later has not "clearly spoken". A handful of decisions in a decade strung together is enough to become a Doctrine before which genuflections is commanded. West Virginia (and other `red states') v. Environmental Protection Agency. See Biden v. Nebraska, forthcoming. - George
Becoming a Doctrine by Alli Orr Larsen :: SSRNBecoming a Doctrine
54 Pages Posted: 2 Mar 2023
William & Mary Law School
Date Written: March 1, 2023
Abstract
On the last day of the 2021-22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted cert to hear a case presenting “the independent state legislature doctrine” – neither of which had been called “doctrines” there before. It begs a fundamental and under-explored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) cross over to become a “doctrine” complete with judicial tests and steps and exceptions? Taking an analogy to medicine, when does a series of symptoms become a “disease? And, importantly, what consequences flow from attaching the label?
This article tackles those questions. It explores the significant consequences that come with the label “doctrine” – consequences for litigants, for lower court judges, and even for theories of legal change and popular constitutionalism. Becoming a doctrine is more than just semantics; it is a baptism that matters. And, significantly, it is not just the province of courts. This article traces the fingerprints of outsiders in the journey from legal idea to doctrine. Comparing the process to doctrine evolution of the past, this article argues that modern communication tools – new search methods, social media, amicus briefing – give political agents the chance to “doctrinize” an idea quickly and to generate legal change through courts. In short, “becoming a doctrine” is now a campaign…and one that deserves our attention.
Keywords: Doctrine, judicial decision making, Supreme Court, major questions doctrine
Suggested Citation:
No comments:
Post a Comment