Abstract

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored 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) become a “doctrine” complete with judicial tests, 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 important questions. It explores the significant consequences that come with the label “doctrine”—consequences for litigants, lower courts, and even theories of legal change. Becoming a doctrine is more than just semantics; it is a baptism that matters. And, significantly, it is a job not solely within the province of courts. This Article traces the fingerprints of outsiders on the journey from legal idea to doctrine. Comparing the process to doctrine evolution of the past, I argue that modern communication tools—new search methods, social media, and 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.

Document Type

Article

Publication Date

1-2024

Publication Information

76 Florida Law Review 1-57 (2024)

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