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76 Fla. L. Rev. 1 (2024)

handle is hein.journals/uflr76 and id is 1 raw text is: BECOMING A DOCTRINE Allison Orr Larsen* 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. * Engh Research Professor and Alfred W. & Mary ILW. Lee Professor of Law, William & Mary Law School. I am grateful to the following people for their helpful thoughts and insights: Adam Liptak, Jeff Fisher, Aaron Bruhl, Adam Gershowitz, Erin Delaney, Tara Grove, Katherine Mims Crocker, Neal Devins, Tejas Narechania, Tom Schmidt, Dan Epps, Marin Levy, Rebecca Green, Paul Hellyer, and all of the participants at the 2022 Stanford Supreme Court Conference and the 2022 Duke Judicial Roundtable. Thank you also to Elle Shipley, Rachel Clyburn, Emma Postel, Kylie Clouse, Jake Blevins, and Kirsten Bahnson for exceptional research assistance.

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