This is from an article Schlag wrote in 1995. I've never seen anyone else refer to this article (everyone seems to like the stuff from `92). I think it's a lot more clear than his earlier stuff. It explains his position very well. He's not against the word "should" per se. That's an oversimplification of what Schlas is against.
"The identification with the figure of the judge is incapacitating in another sense. In addition
to its blinding effect, it also produces a sense of false empowerment. The judge is a figure who
believes ab initio, as a matter of social aesthetics, in the effectiveness of law. This is someone who
believes, as a matter of course, that "law" has certain obvious and nonproblematic regulative relations
to its field of application - relations that bear names like "deterrence" or "facilitation." This is someone
who is given to believing fairly frequently, and often rather improbably so, that because the law
decrees something, it will in fact be so. This is someone who believes that juridical concepts like
specific intent or linear causation or individual autonomy are valid, not merely as juridical concepts,
but as descriptions of social life. Indeed, the self-identification of the legal thinker with the figure of
the judge yields the belief that juridical concepts - concepts such as consent, coercion, public,
individual, and so on - actually map onto the social world in relatively obvious, nonproblematic ways.
The self-identification with [*1117] the figure of the judge thus precludes any critical appreciation
of the character or identity of the categories and relations of law. And it is precisely the resulting false
empowerment that leads legal thinkers to have wildly utopian assessments about the normative
consequences of their own legal thought and law in general.
The self-identification with the figure of the judge is precisely what leads legal thinkers to believe that
they are not only studying law, but that they are in fact "doing" law. It is indeed this conceit that
underwrites the otherwise rather odd, though widespread, belief among American legal thinkers that
prescribing solutions, methods, or even attitudes is somehow a useful or effective way to alter the
behavior of legal actors - most particularly, judges. This belief in the effectiveness of normative
prescription among legal thinkers is an unconscious mimesis of the judge's belief in effectiveness of
judicial orders. The judge concludes the opinion with the phrase, "It is so ordered." The legal thinker
imitates the gesture by concluding the scholarly work with "And therefore, the court should ...." Or,
"We should ...." Or, "Somebody should ...."
It is in such ways that the radical simplification of law is achieved."
Schlag, Pierre. "Law and the Postmodern Mind: Anti-Intellecutallism," Cardozo Law Review 16. Yeshiva University: 1995. [1116-1117]
"The identification with the figure of the judge is incapacitating in another sense. In addition
to its blinding effect, it also produces a sense of false empowerment. The judge is a figure who
believes ab initio, as a matter of social aesthetics, in the effectiveness of law. This is someone who
believes, as a matter of course, that "law" has certain obvious and nonproblematic regulative relations
to its field of application - relations that bear names like "deterrence" or "facilitation." This is someone
who is given to believing fairly frequently, and often rather improbably so, that because the law
decrees something, it will in fact be so. This is someone who believes that juridical concepts like
specific intent or linear causation or individual autonomy are valid, not merely as juridical concepts,
but as descriptions of social life. Indeed, the self-identification of the legal thinker with the figure of
the judge yields the belief that juridical concepts - concepts such as consent, coercion, public,
individual, and so on - actually map onto the social world in relatively obvious, nonproblematic ways.
The self-identification with [*1117] the figure of the judge thus precludes any critical appreciation
of the character or identity of the categories and relations of law. And it is precisely the resulting false
empowerment that leads legal thinkers to have wildly utopian assessments about the normative
consequences of their own legal thought and law in general.
The self-identification with the figure of the judge is precisely what leads legal thinkers to believe that
they are not only studying law, but that they are in fact "doing" law. It is indeed this conceit that
underwrites the otherwise rather odd, though widespread, belief among American legal thinkers that
prescribing solutions, methods, or even attitudes is somehow a useful or effective way to alter the
behavior of legal actors - most particularly, judges. This belief in the effectiveness of normative
prescription among legal thinkers is an unconscious mimesis of the judge's belief in effectiveness of
judicial orders. The judge concludes the opinion with the phrase, "It is so ordered." The legal thinker
imitates the gesture by concluding the scholarly work with "And therefore, the court should ...." Or,
"We should ...." Or, "Somebody should ...."
It is in such ways that the radical simplification of law is achieved."
Schlag, Pierre. "Law and the Postmodern Mind: Anti-Intellecutallism," Cardozo Law Review 16. Yeshiva University: 1995. [1116-1117]