University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2017 Inverted Theories Lee Anne Fennell Richard H. McAdams Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Lee Anne Fennell & Richard H. McAdams, "Inverted Theories," Working Paper(2017). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact
[email protected]. DRAFT – August 11, 2017 INVERTED THEORIES Lee Anne Fennell* and Richard H. McAdams† Simple theoretical models play a large role in the legal academy. They typically embed strong assumptions, which double as qualifications. When the assumptions are thought to be roughly accurate, or inaccurate in trivial or irrelevant ways, the theory’s primary claim takes center stage and the qualifications may be downplayed or even ignored. But what if a critical assumption is widely known to be patently false or extremely implausible?1 Here, we see several responses. A surprisingly popular one is to ignore the assumption’s falsity altogether and embrace the theory anyway. Another robust approach is to reject the theory as being built on a foundation of sand, and refuse to have anything more to do with it.