Essay Explanation in Legal Scholarship: the Inferential Structure of Doctrinal Legal Analysis

Consider a type of argument that is familiar in legal scholarship, such a commonplace in fact that its structure may lurk unnoticed in the background by the reader. The argument proceeds like this: (1) Here is some legal doctrine or rule; (2) courts and scholars (or at least my rivals) tend to think that its point, rationale, purpose, or function is X—that is, the doctrine is “all about” X; (3) but I think they’re mistaken, and the doctrine is really “all about” Y; (4) here is some evidence supporting my claim; (5) therefore, we should understand the point of this rule or doctrine as Y. As an example of this pattern of argument, take a recent paper on the consideration doctrine in contract law. In a classic article, Lon Fuller argued that the consideration doctrine aims to accomplish three purposes: to provide evidence that a contract was entered into, to slow down the contracting parties and cause them to memorialize carefully the terms of their agreement, and most importantly to channel the interactions of parties into legally effective transactional forms.1 Two modern authors claim, however, that the consideration doctrine “lack[s] a sound theoretical justification.”2 Under this argument, received wisdom among contracts scholars is mistaken; the distinction between promises that will be enforceable without consideration and those that are legally unenforceable should actually be understood as a way to make anticommodification norms more robust. That is, treating certain kinds of promises as market transactions violates social taboos.3 The consider-