30 Cardozo L. Rev. 729 (2008-2009)
Theorizing about Self-Incrimination

handle is hein.journals/cdozo30 and id is 737 raw text is: THEORIZING ABOUT SELF-INCRIMINATION
Ronald J. Allen*
When asked to participate in this symposium, I initially declined
on the ground that I had already, to the best of my ability, analyzed
those problems that interest me that lie within the self-incrimination
aspect of the Fifth Amendment.' The thrust of that analysis was that
theorizing about self-incrimination in general had been strikingly
unhelpful, because the domain of the Self-Incrimination Clause is too
unruly to be captured by what passes for theory within the legal realm.
Professor Stein, rather bravely in my opinion, nonetheless asked me to
come, suggesting that a revisiting of my theory of the product of
cognition would be quite welcome.2 Taken by the irony of revisiting
what seems to have been understood as a theory of the Fifth
Amendment that was really meant as a demonstration of the
impoverishment of theorizing, I agreed, and here I am.
In my opinion, the efforts to theorize about the Self-Incrimination
Clause have uniformly been failures, and the interesting question is
why.    One possibility is that the correct theory just has not been
discovered yet, somewhat like the struggle over theorizing combustion,3
and we must keep trying until the problem is solved. I doubt this is true,
and suspect the problem lies in a mismatch between the object of
inquiry and the tools employed. What typically passes for theorizing
about the law involves offering covering explanations or some variant
on, to use the fancy term, deductive-nomological models in which
logical forms are articulated that are supposed to map onto some aspect
of reality relatively neatly.4 Debates over both the proper mode of
* John Henry Wigmore Professor, Northwestern University School of Law. I am indebted to
Esfand Nafisi, Class of 2009, for excellent research assistance, and to the Searle Center and the
Rubloff Foundation for their support.
I Ronald J. Allen, Miranda's Hollow Core, 100 Nw. U. L. REV. 71 (2006) [hereinafter Allen,
Miranda's Hollow Core]; Ronald J. Allen, The Simpson Affair, Reform of the Criminal Justice
Process, and Magic Bullets, 67 U. COLO. L. REV. 989 (1996) [hereinafter Allen, The Simpson
Affair]; Ronald J. Allen & M. Kristen Mace, The Self-Incrimination Clause Explained and Its
Future Predicted, 94 J. CRIM. L. & CRIMINOLOGY 243 (2004).
2 Allen & Mace, supra note 1, at 266-68.
3 See, e.g., The Overthrow of Phlogiston Theory: The Chemical Revolution of 1775-1789, in
HARVARD CASE HISTORIES IN EXPERIMENTAL SCIENCE 14 (James Bryan Conant ed., 1950).
4 See, e.g., KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1959); Carl G. Hempel
& Paul Oppenheim, Studies in the Logic of Explanation, 15 PHIL. OF SCI. 135 (1948).

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