In his latest contribution to MoneyLaw, Jeff Harrison minces no words in expressing disdain for legal skyhooks:
Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. . . . In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas [of legal scholarship].
Jeff's rightful condemnation of skyhooks reminds me of Daniel C. Dennett's 1995 masterpiece on the philosophy of science, Darwin's Dangerous Idea: Evolution and the Meanings of Life. Dennett says this of skyhooks: ""Skyhooks would be wonderful things to have, great for lifting unwieldy objects out of difficult circumstances, and speeding up all sorts of construction projects." Id. at 74. Alas, skyhooks not only don't exist; they can't ever exist.
An unhealthy reliance on skyhooks is fatal to any scientific enterprise. That includes law. Dennett's prescription for biology is one that we lawyers would be well served to embrace. For every skyhook on which we have wagered our professional lives, we must strive to build a genuine crane. In biology, that means finding molecular building blocks for every process. Nothing quite that concrete drives legal science. But we would be remiss if we did not seek, in every act of pedagogy and scholarship, (1) to affirmatively propel the enterprise of subjecting human behavior to the governance of rules, (2) by means of a crane real enough to be falsified by empirical tools at the hands of an independent and politically honest broker. In law as in any other scientific discipline, skyhooks have no place. We're too busy building things to accommodate such idle indulgences.