http://wvgazette.com/news/Other+News/199909036/
Tom Lehman
Nathan Newman wrote:
> > -----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