American University Law Review
October, 1999
ARTICLE
Systems of Belief in Modern American Law:
A View from Century's End
Gerald B. Wetlaufer*
INTRODUCTION
We who study and practice law in America are engaged in an extended series of conversations and arguments about the law, and those conversations and arguments are less easily understood, less easily learned, less productive, less conclusive, and sometimes less civil than we might think it reasonable to expect.
Those who are beginning their study of the law assume, quite reasonably, that there is a set of operating rules that govern this conversation. But they do not know those operating rules and, what is worse, they cannot make them out. Making matters worse, their teachers evidently believe that those rules are simple and self-evident, and that they either need not, cannot, or ought not be explained. When explanations are offered, perhaps in a course on legal reasoning, they may prove far less useful than our students might have hoped.
Those who have been around the law for an extended period of time may describe the condition of legal discourse in different terms, but many of us still find it unsatisfactory. We hear a great many arguments in which it seems that people ought to be convincing one another but, in fact, are not. We see arguments that fail to persuade, disagreements that never end, and, all too often, partisans who neither understand nor respect their adversary�s positions. It is sometimes as if there were so many ships passing in the night. On any given ship, there might be conversations in which issues are joined and problems are solved, but as between those ships there is barely any communication worthy of the name.
My purpose in this Article is to address these problems, first by examining the structure of legal discourse and then by assessing the nature of our differences. In this modest way, I hope to increase the intelligibility of our continuing conversation and to shed some light on the problems of argumentative inconclusiveness, mutual unintelligibility, and, where it exists, mutual disrespect. I also hope to ease the burden on those who are beginning their study of law, to expand the prospects for mutual understanding, to enhance regard for our differences and for the great and unanswered questions on which we are divided, and to enlarge the prospect of our actually joining issue on those great questions.
* Professor of Law, University of Iowa College of Law; A.B., Princeton University, 1967; J.D., Yale University, 1972; gerald-wetlaufer@uiowa.edu. On this unusually broad project, I owe thanks to a lifetime of teachings, students, colleagues, adversaries, and friends. These include the lawyers with whom I long practiced law in Washington, DC; the economists with whom I was privileged to work at that time; the students in the dozen or more courses in which I have taught all or part of this material; Barry Matsumoto, Huston Diehl, Martha Chamallas, Mike Green, Jeff Powell, Karen Engle, Lea VanderVelde, Bill Buss, Ken Kress, Randy Bezanson, and the participants in faculty workshops at the College of Law and the Project on the Rhetoric of Inquiry at the University of Iowa for their comments and suggestions on various versions of this Article; and Arthur Bonfield, Steve Burton, Herb Hovenkamp, Duncan Kennedy, Richard Posner, Jeremy Waldron, Ernest Weinrib and, a long time ago, Alexander Bickel for all they have taught me, in various ways, about their understandings of law. All errors, including those of reduction and omission, are entirely mine.
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