Though philosophers might disagree about what’s the definition of a science, the rhetorical purpose of calling your field a “science” nowadays is the connotation of being empirically-based, and therefore connected to reality. This rhetorical purpose is clearly part of neoclassical economists’ agenda for establishing their field as normative and a suitable basis for policy. I agree with the econophysics crowd, among others, that NCE doesn’t cut it in this regard. Additionally, as Philip Mirowski has documented, the basis on which NCE took over many physics metaphors (such as equilibrium) is pretty fatuous. To say nothing of the Sonnenchein-Mantel-Debreu theorem, which gave even leading neoclassicals like Gerard Debreu agita about the foundations of the field. More lawyers should get acquainted with such extralegal critiques. (My apologies to Frank, who has already heard me hok this chaynik more often than have most.)

First, thanks to A.J. for the kind words, but I doubt this inaugurates a “major intellectual backlash” and I’m sure mine is not a lone voice in a game rewarding brown nosing to top-ranked institutions. My article draws on considerable legal scholarship challenging some of the underlying assumptions of neoclassical economics, in the specific context of tort law. Work is written by a wide variety of scholars at different career stages, at schools and in law reviews of many different ranks. Some untenured faculty, or ambitious faculty seeking appointments to fancier schools, may cede the privilege of inquiry the academy offers, but I’m not sure how widespread that is, though I may be naïve. I also concur with Frank and A.J. on the value of Kronman’s work (cited in my Introduction).

Second, concerning the question of scientific method or rigor, exactly what achievements to rationality and objectivity economic analysis of law can claim is disputable. But there is a firmer basis for observing that it has a much stronger appetite for that, in contrast with traditional legal analysis. One need not be anti-scientific to doubt the actual achievement, even to recognize how wonderful it might be if the achievement were possible but remain skeptical. And here I can mention that I have more sympathy than A.J. does for Hackney’s book (cited in my Conclusion).

Third, A.W.’s points should not be overlooked. Economic insights are vital. And that is something Cardozo knew, and so have lawyers for generations before and since him. The risk is overdoing the economics, or overdoing any other body of knowledge, clouding out insights from other fields equally vital in their potential. Cardozo never did that; Posner often does. And law’s autonomy never prevents absorbing knowledge from other disciplines, as Cardozo showed. And those are two reasons Cardozo’s opinions are stronger than Posner’s.

I made similar comments and critiques to several of John Pfaff’s posts at Prawfs earlier this year although those had more to do with questions of empiricism and scientific methods in the social sciences and law genereally than in economics, yet I think similar if not identical motivations are at work in both cases: in short, positivism of a sort, only now christened post-positivism or a “robust” empiricism, has pernicious effects insofar as it’s principles and practices become, by unabashed avowal or deferential default, the criterial norms and standards for what counts (pun intended) as good (social) science.

Being familiar with Patrick’s views on this (and Patrick, correct me if I misattribute), I would suggest that he might agree with you on the “un-scientific” nature of economics, at least insasmuch as doing so would not instantiate a particular notion of “scientific practice” that itself does not adequately account for that practice within the sciences themselves.

I take Patrick’s point, one I enthusiastically endorse, to be rather that the emulation of a (unpersuasive and to my mind, largely discredited) view of what scientific practice consists of is a convention within at least some dominant discourses in L&E, such that bucking the convention may be inadvisable for the “prudent untenured faculty.”

I agree with the notion that legal reasoning has its own qualities and ought to have autonomy. But I’m not sure I see why that necessitates ignoring the weaknesses inherent in the “E” part of L&E, if you think L&E is not a Good Thing. It’s inefficient to fight with one hand tied behind your brain, so to speak.

Frank’s other point, that brown-nosing is a necessary part of the game, unfortunately does sound true about the reluctance of at least more prudent untenured faculty. But as for you Henry St. George Tucker III Research Professors, Loftus Professors and your ilk: go git ‘em.

As for AJ’s question: I think there are both positive and negative explanations. On the positive side, the participants in the debate may think that they can only have a constructive dialogue if they accept certain first principles and only contest accounts of what follows from such principles. Randall Collins’s The Sociology of Philosophies suggests this idea: the lasting philosophical schools are those which had a “great debate” in mutually recognizable terms over hundreds of years.

On the negative side, one could model scholarship in the area as a game to accrue reputational capital. If most people in the game are aiming to secure such capital, and if it is largely held by those in top-ranked institutions, one is obliged to play their game. One gains nothing from criticizing them on a fundamental level. Rather, it is important to incrementally expand upon the research projects they pioneered, flattering them into thinking that they created a paradigm shift which young scholars entrench by treating it as a framework for normal science.

I can think of a few posts questioning the positive explanation:

http://www.concurringopinions.com/archives/2007/05/scientists_manq.html
http://www.concurringopinions.com/archives/2007/05/one_way_to_begi.html

First, if they are trying to claim that “this is the way it is,” the problem is that if most judges don’t decide to look at things this way, then it doesn’t really explain why things are the way they are. And indeed the attempt to stretch everything into economic analysis often means that the distinction between economic analysis and moral analysis were erased. And finally I just find that economic analysis just often has a clipped attitude about life.

As for “the way it should be” I think often we do create such massive inefficiencies that we need to stop and wonder if it is fair, and in general we should pay attention to who bears what burden. Even a moral thinker should still go through the exercise of economic analysis, for the insight it brings. It may not be the end-all-be-all of legal analysis, but it can be an insightful analytic approach.

so it doesn’t explain everything and is not always the best way to look at things, but its a useful tool to keep handy.

It’s always interested me, though (and frustrated me as well), that so little of the critique of L&E from within the legal academy is focused on a critique of the underlying assumption of neoclassical economics itself. Of course, there’s behavioral economics, but at least in Europe that’s regarded as a mere tweak on neoclassical theory, not a revolution; and the social theory underlying Thaler & Sunstein’s Nudge shows how behavioral econ can lead to a very scary vision (even if not every particular example of a “nudge” might be equally objectionable).

OTOH, there are many critiques of the foundations of neoclassical theory by non-Marxist economists, e.g. Philip Mirowski, Wade Hands and their collaborators in history of economics; the econophysics school; the contributors to the “real-world economics review / post-autistic economics review”; some other “Anglo-Saxon” heterodox economists like Steve Keen and Paul Ormerod; the Continental schools known as the economy of conventions and the economy of regulation (or régulation, which isn’t quite the same thing); the M.A.U.S.S. group in France, whose approach is based in anthropology; the civil economy approach promoted by S. Zamagni at U. Bologna, L. Bruni at U. Milano and others; the J.K. Galbraiths, père & fils; and internal critiques like the Sonnenschein-Mantel-Debreu theorem. I think you’ve discussed the theories of Benoit Mandelbrot in the context of the EMH, which is a step in the right direction, though many of the critiques mentioned above apply more broadly than to financial markets. Frank also recently posted a reference to a paper by Bernard Harcourt, who takes a more Foucauldian view of economics theory, but this seems exceptional (though no less welcome) because of the author’s bilingual education. Occasionally someone will mention one or both Galbraiths, but there is much more out there, even in English.

Any thoughts on why L&E critics tend to be so accepting of the neoclassical economics relied on by L&E proponents? Or is there a more critical body of literature that I’ve missed?