Thursday, September 4, 2014

The rise of law and economics

As I've written before, the law and economics movement is of cardinal importance in the legal-environmental history of the last half century. US Intellectual History Blog recently hosted a guest post by Sara Mayeux, "Three Ways of Explaining the Rise of 'Law and Economics,' and Also, One Way". Mayeux discusses "three recent accounts, each emphasizing a different causal mechanism: the two chapters on law and economics in Steven Teles’s book The Rise of the Conservative Legal Movement; the discussion of law and economics in [Daniel] Rodgers’s Age of Fracture; and Brad Snyder’s recent article 'The Former Clerks Who Nearly Killed Judicial Restraint.'” All resonate with the history of economic analysis in environmental law. Some highlights:
Richard Posner
Like most accounts of law and economics, Teles’s narrative begins with the University of Chicago Law School’s strong core of economics-oriented faculty going back to the 1930s and then proceeds to Richard Posner’s tenure at Chicago beginning in 1969. Teles quotes the legal scholar Douglas Baird, who explains how Posner’s prolific and eclectic output diffused law and economics to just about every doctrinal subfield: “In the early seventies, people like Posner would come in and spend six weeks studying family law, and they’d write a couple of articles explaining why everything everyone was saying in family law was 100 percent wrong. And then the replies would be, ‘No, we were only 80 percent wrong.’ And Posner never got things exactly right, but he always turned everything upside down, and people talked about law differently” (Douglas Baird quoted in Teles, 99-100).
In contrast to Teles’s emphasis on particular personalities and institutions, Daniel Rodgers paints law and economics as one detail in a larger panorama. Law, in his account, is one of many ships on the sea of the 1980s, all buffeted in the same direction by the same storm: “the chaotic economic turmoil of the 1970s” (44). In the chapter of Age of Fracture entitled “The Rediscovery of the Market,” Rodgers describes the 1980s as a moment of widespread cultural “enchantment” with the word “market” and all that it represented (41), borne of a collective longing to understand and, perhaps, control the turbulent economic forces that were remaking America in so many confusing ways. He subsumes law and economics into this larger cultural turn, offering it as just one more discipline-specific example among many: “In the universities, the analytical tools of microeconomics were employed to extend models of utility-maximizing behavior into virtually every quirk and cranny of human life. Lawyers talked knowingly of Pareto optimality and the Coase theorem; philosophers and political theorists debated analytical models of rational choice. In more and more contexts and in answer to a broader and broader range of questions, one heard now that ‘the market decides’” (42). 
Snyder begins Posner’s intellectual biography not with his arrival in 1969 as a professor at Chicago, but earlier, in 1961, when the law student Posner was named editor of the Harvard Law Review. Described by Snyder as “the most cited legal scholar of all time” (2145 n.115), Posner is known today for his dizzying output of scholarly works, trade books, popular press op-eds, blog posts, and, since 1981, judicial opinions for the Seventh Circuit Court of Appeals. In the legal firmament Posner is usually astronomized as a particularly idiosyncratic star. Snyder, interestingly, refigures Posner as simply one more man of his time. In this account, in adopting law and economics, Posner was just doing what all of the top legal thinkers about his age were doing: rejecting the staid framework of process theory that they had learned in law school, with its frustrating insistence on judicial restraint and its naive faith in “neutral principles,” and instead “gravitat[ing] to new and exciting theories” (2154)—theories that envisioned a more muscular, pragmatic, results-oriented role for judges, whether because such a judicial approach was normatively desirable or, on the more realist (or cynical) accounts of judging, because it was simply inevitable. 
The cleanest way I can see to synthesize these three accounts would go something like this: Snyder’s tale of generational rebellion explains the motivation that drove leading figures like Posner to want to chart a new path in legal thought away from legal process theory. Rodgers’s big-picture intellectual context explains why this particular new path was among the routes visible to them at the moment they began looking (and perhaps why it was among the more attractive such paths). And finally, Teles’s nuts-and-bolts account explains why so many others followed down the path, once it had been marked—it reconstructs the vectors of institutional support and funding that brought these ideas into contact with judges, lawyers, legal scholars, and other interested observers of law who might not have had any particular generational motivation to worry about process theory, and who might not have had any particularly systematic exposure to the welter of market concepts that Rodgers discusses, but who, once they encountered law and economics in its various vernacular iterations, decided it sounded plausible enough to them (and/or that it served other interests they had) that they became converts. 

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