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teles book forum response #1

On Monday, I asked a few questions about The Rise of the Conservative Legal Movement. Teles responds here. Next week, I’ll add some more questions. Feel free to ask more in the comments, or write your own and link here:

First of all, I want to thank Fabio for hosting this forum on my book. Although I’m a political scientist, my book draws on a lot of sociological theory, and my hope was that it would be of interest to sociologists interested in social movements, political organizations, and the sociology of knowledge. In fact, I think it has at least as much to offer sociologists as folks in my home discipline.

Ok, so let’s get right into it. Fabio asks a number of questions about law and economics. One thing that is important to note, and that I try to emphasize in the book, is that L&E is peculiar in that, especially in its early days, it was both an ideology and a methodology. That is, L&E practitioners had a critique of the generally pro-interventionist slant of most existing legal scholarship—especially in private law areas and anti-trust—but they also were attacking the way that legal scholarship was done, focusing mainly on interpreting existing case law. So if we want to ask if L&E was successful, we need to think of it as having these two elements simultaneously.

I would say that L&E was more successful methodologically than ideologically, although (for reasons I’ll explain in a second) it has also had some considerable effect on the ideological composition of elite law schools. Methodology first. In the 1960s, almost no law professors had any disciplinary training (either formal or informal), and law schools were still connected as much to the legal profession as they were to the rest of the university. The raw material for what legal scholarship was done was almost exclusively case law, and so the standard law review article was a textual exegesis of what courts had said, and a logical argument about how that might imply a particular approach to subsequent cases. Law and economics was a criticism of this form of scholarship, arguing that law professors needed to have some approach external to the law itself from which to criticize what judges and regulators were doing. That approach, of course, was Chicago-style price theory.

Jumping over a lot of history examined in the book, law and economics as a methodological attack on existing legal scholarship has been a pretty substantial success. All major law schools now have a considerable number of professors trained (many with PhDs, but others more informally) in economics or other social sciences. Especially in private law, regulation and anti-trust, considerable comfort with economics is basically necessary for admission to being taken seriously, and purely doctrinal scholarship has declined considerably. Empirical legal scholarship has grown massively, and shows signs of continuing to do so. So, as a methodological movement inside the discipline of law, L&E was a success, operating as an opening wedge through which a lot of other kinds of social science scholarship followed.

Whether L&E has been an ideological success is a more complicated story. The early practitioners of modern L&E (there was an earlier “institutional law and economics” that never got anywhere near the same traction) were almost, to a man, committed libertarians. They saw the logical arguments and empirical evidence of law and economics as going hand-in-hand with a critique of governmental activism. For the most part, they thought that New Deal intervention in the economy (especially vigorous anti-trust enforcement) was driven by fundamental economic illiteracy, and that it couldn’t withstand even rudimentary investigation. That explains, for example, the aggressive and often dismissive tone of, for example, Posner’s Economic Analysis of Law.

Basically, as law and economics spread beyond Chicago, it gradually lost some of its libertarian edge. Its first major non-Chicago outposts were at UVA and USC law schools, where libertarians (like Richard Epstein) were part of the team, but were by no means the only game in town (UVA, for example, had Jerry Mashaw and Michael Graetz, among others, who were influenced by L&E but more in terms of improving the quality of government intervention, not eliminating it). This trend only increased with the creation of the Olin L&E programs at elite schools in the 1980s and 1990s, and the rapid increase of JD/PhDs in economics.

In the book, I argue that conservative funders saw L&E as a way to get more conservatives and libertarians into law schools, and it did have some of that effect: the approach is generally more open to those of a more libertarian bent than other approaches in legal academia. But as the approach went mainstream, it gradually took on the ideological coloring of the economics profession as a whole, rather than the libertarian tendencies of its founders. While I didn’t study the matter systematically, it seemed to me that law and economics scholars at top law schools generally have the same distribution of opinion (especially on the issues they focus on) as does the economics profession as a whole. That’s a different distribution than the rest of legal academia, and as the number of law and economics professors has increased the overall distribution of opinion on economic issues among law professors overall has shifted to the right. While that shift has occurred in part because of the hiring of a small number of Chicago-style L&E people, it’s more because of the larger number of more moderate (and even liberal) law professors with opinions that look like those of people in their university’s economics department.

There are outposts in the legal academy that have continued more in the spirit of the original L&E pioneers, the most important of which is George Mason University Law School. As L&E became more mainstream within the legal academy as a whole, GMUSL stopped being as competitive in attracting mainstream L&E people and became more and more a shelter for libertarians (like Ilya Somin, David Bernstein, Todd Zywicki). There are other places, like Northwestern, that while not as dominated by libertarians as GMUSL have a considerable chunk of them (along with a group of straight-ahead conservatives). But overall, I’d say that to the degree that the hopes of L&E’s founders were that they’d be able to get more full-bore critics of government intervention into law schools, they’ve been less successful than they have been at helping to change the methodological character of legal scholarship.

While I don’t have room to go into the matter in detail, I think this does suggest a couple of broader points, which I’ll just throw out there and come back to later. First, elite law schools seem to have had a more effective ideological, as opposed to methodological, immune system. Again, that’s not to say that there hasn’t been any ideological change due to the entry of law and economics into elite law schools, but it has been much less than the change in the disciplinary character of law schools. Second, L&E was successful in law schools in part because of the pre-existing weakness of the fields it was attacking. Doug Baird, who went on to become Dean of the Chicago Law School, told me that in the 1970s, “it was clear that…doing great work was easy…I used to say that this was just like knocking over Coke bottles with a baseball bat…I remember writing articles where the time between getting the idea and getting it accepted from a major law review was four days.” (p.100) That suggests that to account for the success of L&E, we need an approach that looks both at the pre-existing regime in the law schools (especially in private law), and not just on what the agents trying to bring it down were doing. That is, there was an opportunity that, in the 1970s, meet a set of mobilized agents. I think that you can’t explain what happened with the explosion of law and economics without dealing with the structural vulnerability in the legal academy that agents were able to exploit (along with the fact that the immune system of the legal academy was much lower in areas like bankruptcy that had lost much of the ideological interest that they once had).

Thanks again for inviting me to this discussion, and I’ll be back soon with some answers to the rest of Fabio’s many questions!

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Written by fabiorojas

August 5, 2008 at 8:48 am

4 Responses

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  1. Nice job Fabio and Steve. This is very intersesting stuff. The book is now on my Amazon wish list.

    Steve, if you’re taking more questions, could you please share your thoughts about the future of L&E?

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    mikemcbride

    August 5, 2008 at 11:43 pm

  2. I don’t have a huge amount of insight on this, but there’s a great exchange that was originally on truthonthemarket, that can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1145421. It’s well worth reading, especially because it includes Henry Manne’s very wise insights. I can also recommend Richard Posner’s review of Steven Shavell’s Foundations of Economic Analysis of Law, published in the JEL. If you’re an AEA member, or have access through your university, you should be able to get it here: http://www.aeaweb.org/articles.php?doi=10.1257/jel.44.2.405. It’s very good in situating the cutting edge of contemporary work in the area in the longer-term trajectory of the field–pointing both backwards and forward.

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    Steven Teles

    August 6, 2008 at 12:25 am

  3. […] teles book forum #2: conservatives in the sociological lens Posted in books, fabio, political science, social movements, sociology by fabiorojas on August 11th, 2008 This is round two of the forum on The Rise of the Conservative Legal Movement. Click here for Steve’s remarks from last week. […]

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  4. […] here. An online book forum was conducted through a series of blog posts on orgtheory.net: here, here, and here. See also […]

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