Why law school’s love affair with economics is terrible for the American legal system
Law schools are putting more and more emphasis on a cash-crazed free market ideology. Here's what's at stake
Topics: Economics, Editor's Picks, law school, lawyers
Like nearly 40,000 other young Americans, I recently completed my first year of law school. For our cohort of would-be attorneys, the past 10 months have consisted of little beyond underlined casebooks, cold calls in lecture and obscure citation methodologies. The dividends, at least so we tell ourselves, are brains better equipped to parse the verbal contortions of our overly legalized society, and temperaments hardened against the drudgeries of a famously pugnacious profession.
This summer, as we fan across the world to complete internships at bright-eyed nonprofits, cash-strapped bureaucracies and sprawling mega-corporations, we’re forced to start deciding how to use those newfound skills. Lawyers are not famously honest people; as a whole, attorneys’ ethics are well within reproach. Two years shy of taking the bar and already immersed in this suspect culture of law, then, we would-be advocates have to choose whether to conform to the desultory trend or buck it — to pick either good or evil, you might say.
A year ago, I imagined — as most people probably do — that the initial year of legal studies would put a heavy emphasis on the good. I anticipated lots of lofty vocabulary about justice and rights and freedom. Attorneys may not have the cleanest reputations, but it seems fitting that an introduction to the life of the law would aim high, if only as an idealistic and rhetorical reprieve before the realities of the job market set in. But while there’s certainly some discussion of liberty and righteousness in the halls of our law schools, there’s not quite as much of it as you might think. The path to the bar is not paved with sentimental cobblestones of the Good and the Right. It’s much more pragmatic than that.
In fact, the most repeated word in my first year law curriculum was not justice, or liberty or order.
It was efficiency.
You may be picturing a well-oiled engine, an LED light bulb, or a marathon runner. I’m picturing game theory tables and dense paragraphs of economic speculation. Efficiency, new law students will soon discover, doesn’t quite mean what Merriam-Webster claims it does: “the ability to do something or produce something without wasting materials, time, or energy.” No, no. It refers to how well, and how cheaply, legal rules accomplish their purposes.
Since September, I’ve been encouraged to think about the law less as a journey toward justice and more as a means for distributing resources. In Civil Procedure, we examined the wisdom of allowing average people to bring lawsuits based on the overall court costs involved. And in Property, the problem of whether to permit the building of a cement plant in a residential neighborhood turned on the national industry’s need for cement. In nearly every discussion of a given law or a proposed policy, the first question was feasibility, and the second (or third) was justice. “Feasibility” means financial soundness. Financial soundness requires measurement. So in order to measure and mete out our resources, legal questions grasp for the harsh insights of computation.
According to this oddly constrained worldview, the legal system is just another (and comparatively imperfect) means for achieving “wealth maximization.” We want a “bigger pie,” so the incessantly repeated metaphor goes, and law is merely about deciding which yeast works best. The impassioned cris de coeurs of Blackstone, Cardozo or Sotomayor notwithstanding, “the life of the law” is not, to paraphrase another luminary, “experience” — it’s accounting. If only we would spend less time with the romantic and messy concepts that have beguiled the likes of Holmes and Brandeis for millennia, so the thinking goes, we might actually be able to make things work.
In the obvious — and obviously ideological — corollary to all this, law school has tried to convince me that it’s not lawyers or judges that should decide the hard questions of law: It’s economists. The white knights of the 21st century legal academy, economists are uniquely equipped, so they claim, to furnish us wishy-washy idealists with the quantitative rigor to perform the difficult, and consummately serious, analysis that policy and politics require.
In other words, society is a problem. And legal economics is here to solve it.
The law and economics movement, born at the University of Chicago in the 1970s, gave birth to this type of thinking and now enjoys unquestioned academic supremacy over the more prevaricating methods of legal realism, critical legal studies and legal formalism. Law and economics’ doyen Richard Posner, a professor at Chicago, Seventh Circuit judge and famous advocate of all things market-oriented, is the most cited legal academic of the 20th century. Ronald Coase’s “The Problem of Social Cost,” which reduces debate over legal rules to the calculation of transaction costs, is the most cited legal article. Passions have cooled somewhat since the raucous debate in the ’80s and ’90s over law and economics’ takeover of the legal academy — which was aided in no small part by generous donations from private, free market-promoting foundations — but that’s just because the movement’s methods have become part of the background. No other approach to adjudication dominates class discussion to such an extent, or shapes the way in which cases are selected and read.
The economic analysis of law, then, has become the standard against which other approaches are measured. And even if many professors still believe that cost-benefit analysis, with its incessant focus on data and calculation, brandishes empiricism the way Descartes brandished self-reflection (read: with excessive faith in a promising but limited approach), only a cantankerous cynic would argue that it’s all hogwash.
But that’s not to say there isn’t much to pause over.
Here’s a typical example: Legal economists generally assess the value of a resource — land, loans, even lives — by how much someone is willing to pay for it. This makes sense at a very basic level: The sandwich is worth $8 because you won’t pay $9 but you’ll pay more than $7. But how effectively can dollars capture worth when people have different abilities to pay? It seems a bit obtuse to claim that the owner “willing” to pay $200,000 for her home values it less than the developer “willing” — read: able — to spend $1 million. And that’s just marketable assets. What about more elusive “resources”? How do we price, say, the happiness of children? (Don’t worry: economists have tried.)
Here’s another example: Economic analysis evaluates environmental regulations according to the net social value of restricting industrial activity versus the activity’s economic value absent regulation. Even beyond the difficulties of measuring such things, how do we decide where to draw the line between what “counts” as value in such a calculation and what doesn’t? When dealing with something as resistant to quantification as a wild stream, this puzzle has no end. Is the stream only valuable to those who live by it? To those who live in it? What about those who hear stories about it, or who would drink from it in 90 years, or the painters who might never see it? Does their value “count”?
