Why did critical legal studies disappear? Will it reappear? Why does the Federalist Society prosper? Why, and when, do people write books on constitutional law, rather than tort law or antitrust? Why did people laugh at the notion of "animal rights," and why do they now laugh less? Why do law professors seem increasingly respectful of "textualism" and "originalism," ideas that produced ridicule and contempt just two decades ago? How do book reviewers choose what books to review? Why has law and economics had such staying power? Academics are generally committed to truth, and they are drawn to ideas that can be shown to be good ones. The most optimistic answer to these questions is that ideas survive because and to the extent that they are true or good. On this view, law and economics has outlasted critical legal studies because it has much more to offer. Textualism and originalism have had a resurgence because much can be said on their behalf. Book reviewers, in the academic domain, tend to choose to review the best books. In my view, these claims contain some truth, but they are far too optimistic. Academics, like everyone else, are subject to cascade effects. They start, join, and accelerate bandwagons. More particularly, they are subject to the informational signals sent by the acts and statements of others. They participate in creating the very signals to which they respond. Academics, like everyone else, are also susceptible to the reputational pressures imposed by the (perceived) beliefs of others. They respond to these pressures, and by so doing, they help to amplify them. It is for these reasons that fads, fashions, and bandwagon effects can be found in academia, including the academic study of law. Fortunately, the underlying forces can spark creativity and give new ideas a chance to prosper. Unfortunately, these same forces can also produce error and confusion.
Cass R. Sunstein,
Foreword: On Academic Fads and Fashions,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol99/iss6/2