> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> But Law and
> Economics was first constructed at Chicago by Milton Friedman's brother
> in law to do just what it does.
>
> I know of no leftist or even no liberal in its ranks, but then I am not
> an expert.
I'm not sure about leftists, but one of the founders of Law and Economics in a broad sense was Yale's Guido Calebrisi, who used economic arguments for very liberal tort policies that held corporations liable under the doctine of them being "the lowest cost decision-maker" for preventing accidents. Calebrisi is the bete noir of those who defend corporations and bemoan the "litigation crisis." And Guido is a very liberal guy politically, having clerked for Hugo Black and promoting very socialized insurance plans as an alternative to costly "transaction costs" due to lawsuits.
His key article on the subject of law and economics came within months of Coase's first writing on his famous Theorem. Within law, Coase and Calebrisi share honors in originating the basic foundation of law and economics. Guido is none to fond of what Posner, Epstein and others have done with his baby, but he started off playing the same game.
I have to say that the pervasiveness of law and economics in all course dealing with even marginally economic issues has astounded me. Not all of it is pernicious - especially when you compare it to some of the raw elitist "liberty" arguments that often pervade older legal doctrines - but the largest fault is the ultimate narrowness of values involved. If it would make more modest claims (which a few do) which merely argues that given x situation, here are y or z economic consequences - which leaves you free to imagine a change in x, rather than merely concentrating on choosing between y or z.
At its base, law and economics had the original claim of arguing that the dead hand of precedent or high-minded "first principles" should not be respected if the result is bad economic results. There are a lot of conservative doctrines packaged under current "law and economics" schools, but its radicalness is also as an attack within legal scholarship on many traditional canons of legal rhetoric- a position it shares in many ways with left alternatives like Critical Legal Studies. Such attacks, whether from the Right or Left, argue that "private law" between singular actors have to be analyzed in the broader context of social results. This is not inherently a conservative stance, and even folks like Posner can end up with some interestingly liberal and even left positions in following that thread of argument in specific cases.
The conservativism comes from other assumptions used to determine what are bad "economic results." Which is just importing the biases of mainstream economics, but if lefty economic analysis is imported and applied, the results could be quite different. I spent last semester writing a piece on why unions make sense in resolving problems in trade secrets law (which Michael was kind enough to look over) which could fairly be placed in the broad "law and economics" category, since I pretty much ignored all arguments from precedent (a big no-no in traditional legal discourse) and just argued for unions as providing optimal economic and innovation maximization as compared to depending on individual contracts. No fancy econ graphs but I cited a number of economists in supporting my arguments.
The fact is that most of the lefty law students I know are not very into the hard-core econ law courses. It's a bit of a joke among the liberal law students that here I am as socialist wacko lefty boy taking all the "black letter" corporate courses with the tools headed for Wall Street firms. Folks like Jed Purdy take mostly "law and justice" type courses that might as well be political philosophy courses. One reason I decided to go to law school was the recognition that there aren't enough labor lawyers who really can mount the kind of anti-corporate economic legal arguments we need, especially ones who have a grassroots activist orientation as well. But my belief is that the problem is that (as if true in other intellectual areas) the Left has vacated the economic high ground in favor of "softer" political and moral defenses of its arguments. Nothing wrong with having those arguments, but especially in applied economic situations of the law, the failure of the left's energy in this area is a problem.
--Nathan Newman