Law and economics has done well for some straightforward reasons. Most of all, law schools have become more research-oriented over the last twenty years. Publication is more important and word-of-mouth about the quality of publication is more important. Law and economics, which draws so much of its method from economics, has been ideally positioned to benefit from this trend, albeit by a kind of historical accident.
The eighty-page “blah blah blah” law review article is harder to sell in an age of competitive professionalization of the law professor market itself. Law and economics arguments usually can be stated succinctly and the quality of argumentation and evidence is relatively easy to evaluate. It is possible, for instance, that an argument or piece of evidence is wrong and can be demonstrated as such. If law and economics requires some technical knowledge, so much the better for its ability to “signal” the quality of law school professors. I expect these trends to continue.
The conservative branch of the law and economics movement has in particular grown for some reasons rooted in politics. Starting with Reagan, we have had Republican Presidents willing or eager to appoint conservative judges to the bench or other positions of influence (e.g., Ed Meese under Reagan). The conservative side of the legal profession has risen rapidly in relative status and influence. The organization and growth of The Federalist Society has accelerated this process and given it grass roots.
I view the relatively conservative nature of the law and economics movement as a historical accident which is already more or less obsolete. For better or worse, the wave of the future is scholars such as Cass Sunstein, not Henry Manne. The simple lesson is simply that in the long run “mainstream” usually wins out, even if the efforts of Henry Manne shifted or accelerated what later became mainstream trends.
One topic which interests me is how the “conservative” law and economics movement, as it is found in legal academia, differs from “market-oriented” economics, as it is found in the economics profession. The “right wing” economist and legal scholar will agree on many issues but you also will find fundamental variations in their temperament and political stances.
Market-oriented economists tend to be libertarian and it is rare that they have much respect for the U.S. Constitution beyond the pragmatic level. The common view is that while a constitution may be better than the alternatives, it is political incentives which really matter. James M. Buchanan’s program for a “constitutional economics” never quite took off and insofar as it did it has led to the analytic deconstruction of constitutions rather than their glorification. It isn’t hard to find libertarian economists who take “reductionist” views of constitutions and trumpet them loudly.
The conservative wing of the law and economics movement, in contrast, often canonizes constitutions. Many law and economics scholars build their reputations from studying, interpreting, or defending the U.S. Constitution. You don’t get to higher political or judicial office by treating a constitution in purely economic terms.
A second set of differences stems from issues of foreign policy, executive power, and due process, as manifested for instance in the recent debates on torture and detainment of terrorists. Many legal scholars on the right have been forced to either ally themselves with the Bush administration or break with it. The market-oriented economists haven’t faced such a stark dilemma. When it comes to economic issues, there is a readily available default position that keeps you friends with (almost) everyone. You can believe that the Bush administration spent too much but that the Democrats might have been much worse in this regard. Furthermore economists as a whole are less interested in political office than are legal scholars; we have no equivalent of the Supreme Court (chairing the CEA isn’t worth nearly as much in terms of influence or prestige) and thus we are freer agents.
For these reasons, there has been less of a crisis of conscience or polarization among the market-oriented economists. Maybe that will change with the fallout from the financial crisis or global warming but so far the economists have been less politicized than the legal scholars.
I am an economist and when I meet my peers from the legal side of the law and economics movement I often feel as if I am stepping on culturally foreign territory. Overall I feel more at home, culturally and intellectually speaking that is, talking to conservative Democratic economists.
As for the subject directly at hand, I enjoyed reading Steve Teles’s book and I thought it was very carefully researched. It is the best single-volume introduction to its chosen topic. I recommend it to all those who think they might be interested.
For obvious reasons, the part of the book which interested me most was the section about my home institution, George Mason University, and in particular the School of Law. I liked this part of the book too, but I felt it didn’t give a complete picture. In particular there wasn’t enough coverage of the students, a key part of any law school.
I’ve taught a Law and Literature at the GMU School of Law for seven years now. At the same time, I’ve had no real contact with law school governance, as my tenure is in the economics department. (Oddly, although I am an economist, the course contains close to zero economics. Just about every year, I eventually hear something like “You mean you’re not an English professor?”) From my contact with the students, which by now is extensive, I have never noticed signs that I am in anything other than a standard law school.
Never. If I mention “moral hazard” or the “Coase theorem” in regard to the legal discussion in the Book of Exodus, I get a few giggles. Maybe you could count that. I also believe the student body is more ethnically and intellectually diverse than at many top-tier law schools and yes that does mean it is probably more politically conservative than is the student body at Harvard Law. But I believe that is due to our northern Virginia location, and other demographic factors, rather than due to the influence of the faculty in any significant way.
They’ve been a great group of students, deeply interested in new and different ways of thinking about law, whether it be through the lens of economics or through film and fiction. They’re very curious and very willing to challenge whatever I throw at them. I could not get them to agree that the last section of Smilla’s Sense of Snow consists of imagined rather than real events. They think critically about virtually everything they are taught.
So the primary narrative of GMU Law, as I experience it, is that of an educational institution. Teles’s discussion provides a more novel perspective, but it is important not to forget the weight and importance of daily routine and I mean that term in a positive sense. Students come and learn about law, and in turn become lawyers, and that is indeed the main story of what goes on.