Academic

Allen on Theorizing About Self Incrimination

By Lawrence Solum

Ronald J. Allen's Theorizing About Self-Incrimination is now available on the Cardozo Law Review's website. Here is a taste:

When asked to participate in this symposium, I initially declinedon the ground that I had already, to the best of my ability, analyzed those problems that interest me that lie within the self-incriminationaspect of the Fifth Amendment. 1 The thrust of that analysis was that theorizing about self-incrimination in general had been strikinglyunhelpful, because the domain of the Self-Incrimination Clause is too unruly to be captured by what passes for theory within the legal realm.Professor Stein, rather bravely in my opinion, nonetheless asked me tocome, suggesting that a revisiting of my theory of ?the product of cognition? would be quite welcome. 2 Taken by the irony of revisiting what seems to have been understood as a ?theory? of the FifthAmendment that was really meant as a demonstration of the impoverishment of theorizing, I agreed, and here I am.

In my opinion, the efforts to theorize about the Self-IncriminationClause have uniformly been failures, and the interesting question is why. One possibility is that the correct theory just has not beendiscovered yet, somewhat like the struggle over theorizing combustion, 3 and we must keep trying until the problem is solved. I doubt this is true, and suspect the problem lies in a mismatch between the object of inquiry and the tools employed. What typically passes for theorizing about the law involves offering covering explanations or some variant on, to use the fancy term, deductive-nomological models in which logical forms are articulated that are supposed to map onto some aspect of reality relatively neatly. 4 Debates over both the proper mode of constitutional interpretation and law and economics, as disparate as they are, are nonetheless exemplars. Covering generalizations have to actually cover, and formal models actually accommodate, all the relevant variables, yet the extension of ?self-incrimination? contains thousands of variables, some of which are continuous rather than discrete, and no theory with such coverage could be articulated, nor would its outputs be computable in real time. 5

So, to me the interesting question no longer is ?what is the, or the best, theory of self-incrimination,? because it is plain that there is and will not be any good ones of the standard sort. Rather, the interesting question is the puzzling persistence of the futile effort at standard theorizing. Unfortunately, that in turn means that, were I to follow my interests directly, I would engage in theorizing about theories. Even more unfortunately, though, everyone but a few strange ducks like me finds such abstract methodological discussions deadly dull, and anyway engaging in one would not be respectful of Professor Stein?s kind invitation to join a group to discuss self-incrimination. Therefore, I will not directly discuss the limits of theorizing.

I will indirectly discuss them. First, I intend to demonstrate the striking inutility of the entire set of theorizing about self-incrimination,including the three major efforts that have been published since I previously wrote. Second, I will explain why my purported theory of the Self-Incrimination Clause, while I think true in one important sense,was not really offered as a theory but as a critique of theorizing of a certain sort. Third, I will address directly, but, I promise, briefly, the nature of theories as an explanation for all of the above. Fourth, I will,equally briefly, identify how knowledge may nonetheless grow, and rationality be pursued, in the absence of effective standard theorizing. And last, in passing, I will speculate about whether any of this matters for much of the work product of the legal academy.

Highly recommended.

Full post as published by Legal Theory Blog on March 17, 2009 (boomark / email).