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The Law and Economics and Critical Legal Studies Movements in American Law

  • Gary Minda
Part of the Recent Economic Thought Series book series (RETH, volume 19)

Abstract

One of the most striking new developments in American legal thought has been the almost simultaneous emergence of two new intellectual “movements” in law-law and economics, and critical legal studies. The title, law and economics, as used in this chapter describes the work of legal-economic scholars who appeared on the academic scene in the early 1970s located primarily at the University of Chicago. There they developed a “new” methodology for doing economic analysis of law. What is new about law and economics is that its practitioners apply concepts developed in the theory of microeconomics, and in a branch of microeconomics called welfare economics, to systematically describe, reformulate, and critique nearly every aspect of law and the legal system. A central claim of the new law and economics is that the entire legal system can be analyzed and reformed through the application of a relatively small number of fundamental economic concepts [1].

Keywords

Supra Note Legal Scholar Legal Thought Legal Realist Critical Legal Study 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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References

  1. 1.
    By far the most influential work seeking to demonstrate the idea that economic analysis can be instrumentally applied to law “across the board” is Posner, Richard A., Economic Analysis of Law (Boston: Little, Brown and Company, 1986).Google Scholar
  2. 2.
    Critical legal studies emerged as an identifiable movement in American law with the foundation of the Conference on Critical Legal Studies in 1977. For a social history of the critical legal studies movement see Schlegal, John H., “Notes Toward an Intimate, Opinionated and Affectionate History of the Conference on Critical Legal Studies,” Stanford Law Review, Vol. 36, Nos. 1 & 2 (January 1984), pp. 391–411. For psycho-social history commenting on the “state of the movement,” see Kennedy, Duncan, “Psycho-Social CLS: A Comment on the Cardozo Symposium,” Cardozo Law Review, Vol. 6 (1984–85), pp. 1013–1031. The intellectual component of CLS is described in Unger, Roberto M., “The Critical Legal Studies Movement,” Harvard Law Review, Vol. 96, No. 3 (January 1983), pp. 563–675. For a bibliography of CLS scholarship see Kennedy, Duncan, and Klare, Karle E., “A Bibliography of Critical Legal Studies,” Yale Law Journal, Vol. 94 (1984–85), pp. 461–463.CrossRefGoogle Scholar
  3. 3.
    Law and economics and critical legal studies are richly diverse intellectual movements involving a multitude of individual views, methodologies, “schools,” and diverse theoretical traditions. For a recent attempt to describe the different views of the two movements in a preliminary way see, Fiss, Owen M., “The Death of the Law?,” Cornell Law Review, Vol. 72, No. 1 (November, 1986), pp. 1–16; Minow, Martha L., “Law Turning Outward,” Telos, Vol. 73 (Fall, 1987), pp. 79–100; Kornhauser, Lewis A., “The Great Image of Authority,” Stanford Law Review, Vol. 36, Nos. 1 & 2 (January 1984), pp. 349–389. See also, Posner, Richard A., “The Decline of Law as an Autonomous Discipline: 1962–1987,” Harvard Law Review, Vol. 100, No. 4 (February 1987), pp. 761–780.Google Scholar
  4. 3.a
    The law and economics movement is frequently identified with the Chicago school of economics which is associated with the work of conservative economists trained or working at the University of Chicago. Practitioners of the Chicago school tend to view law and the legal system as merely a supplement to the market, a necessary but minor vehicle for perfecting market-like solutions. See Minda, Gary, “The Lawyer-Economist at Chicago: Richard A. Posner and the Economic Analysis of Law,” Ohio State Law Journal, Vol. 39 (1978), pp. 439–475. See also Ackerman, Bruce A., “Symposium of Law and Economics-Foreward: Talking and Trading,” Columbia Law Review, Vol. 85, No. 5 (June 1985), pp. 899–904. There are, however, other “schools” within law and economics that exhibit different perspectives. The New Haven school, of Yale University, for instance, has attracted liberal practitioners who adopt the common methodology of the Chicago school but believe that there is a larger need for state intervention in order to cure problems involving market failure. See Fiss, supra note 3. What is common about the Chicago and New Haven schools, however, is that both can be seen to be working within the liberal tradition of economics. Attempts to describe the general themes and vision of the law and economics movement have also been more successful in that these scholars seem to agree on a common methodology.Google Scholar
  5. 3.b
    Critical legal studies is even harder to pin down since practitioners of this movement do not appear to share a common methodology, but are united instead by their political and social alliances. The intellectual basis for this movement includes a number of diverse theoretical traditions. The common thread within this movement which distinguishes itself from law and economics is that CLS explicitly adopts methodologies and approaches which are characteristically nonliberal in their origin and orientation. For a description of the views expressed within the CLS movement see Fitzpatrick, Peter, and Hunt, Allen (eds.), Critical Legal Studies (New York: Basil Blackwell, 1987).Google Scholar
  6. 4.
    See Minow, supra note 3, pp. 79–100.Google Scholar
  7. 5.
    Ibid., p. 89.Google Scholar
  8. 6.
    Ibid., pp. 90–91. Minow argues that the group of scholars within each movement have been “preoccupied with the apparent loss of certainty and determinability within legal reasoning and legal institutional decisionmaking.” Ibid., at p. 91.Google Scholar
  9. 7.
    Ibid., p. 90.Google Scholar
  10. 8.
    Fiss, supra note 3, p. 2.Google Scholar
  11. 9.
    Ibid. In Minow’s view, law and economics and critical legal studies signify that the legitimacy of law is now open to question. For Fiss, these two movements signify the “death of law.”Google Scholar
  12. 10.
    Posner, supra note 3, pp. 766, 768.Google Scholar
  13. 11.
    Ibid., p. 769.Google Scholar
  14. 12.
    Ibid., p. 773.Google Scholar
  15. 13.
    Paul Carrington, Dean of Duke University Law School, argued in a widely publicized journal that members of CLS should leave legal education because they failed to “keep the faith” in their commitment to “the law.” Carrington, Paul D., “Of Law and the River,” Journal of Legal Education, Vol. 34 (1984), pp. 222–228. For responses to Dean Carrington’s article, see Martin, Peter W., “‘Of Law and the River’ and of Nihilism and Academic Freedom,” Journal of Legal Education, Vol. 35 (1985), pp. 1–26. My views are discussed in Minda, Gary, “The Politics of Professing Law,” Saint Louis University Law Journal, Vol. 31, No. 1 (1986), pp. 61–71.Google Scholar
  16. 14.
    Fiss believes that the new “jurisprudential movements of the seventies” are threatening because they are “united in their rejection of the law as public ideal.” Fiss, supra note 3. Fiss’ views are more fully developed in Fiss, Owen M., “The Supreme Court, 1978-Foreword: The Forms of Justice,” Harvard Law Review, Vol. 93, No. 1 (November 1979), pp. 1–58. See also Fiss, Owen M., “Objectivity and Interpretation,” Stanford Law Review, Vol. 34 (1981–82), pp. 739–763. For a critical review of the view expressed in these papers see Brest, Paul, “Interpretation and Interest,” Stanford Law Review, Vol. 34 (1981–82), pp. 765–773; Fish, Stanley, “Fish v. Fiss,” Stanford Law Review, Vol. 36 (July 1984), pp. 1325–1347. For Fiss’ reply to Fish see Fiss, Owen M., “Conventionalism,” Southern California Law Review, Vol. 58 (1985), pp. 177–197.Google Scholar
  17. 14.a
    For nearly a decade now Fiss has been warning of the dangers of new jurisprudential trends which depart from the style of jurisprudence characterized by the Warren Court era in constitutional law. He asserts that during the Warren Court era of the 1960s, judges sought to provide “structural reform” by giving “meaning to our public values.” Fiss (1979), supra note 14, p. 2. According to Fiss, Earl Warren symbolizes the “great judge”-“someone whom the specter of authority both disciplines and liberates, someone who can transcent the conflict.” Fiss (1982), supra note 14, p. 758. The public values which “great judges” are supposed to give effect (values such as equality, liberty, due process, etc.) are thought to have a “true and important meaning” such that by a process of “reasoned elaboration” judges can “discover” these values and make them meaningful in decisionmaking. Fiss (1979), supra note 14, p. 17. (“The task of a judge, then, should be seen as giving meaning to our public values and adjudication as the process through which that meaning is revealed or elaborated.” Ibid., p. 14.)Google Scholar
  18. 15.
    For discussion of the current “crisis” in legal scholarship and legal theory see Posner, supra note 3, p. 3; see also Brest, Paul, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship”, Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1063–1109; Gordon, Robert W., “Historicism in Legal Scholarship,” Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1017–1056, Posner, Richard A., “The Present Situation in Legal Scholarship,” Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1113–1130; Stone, Christopher D. “From a Language Perspective,” Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1149–1192; Tushnet, Mark, “Legal Scholarship: Its Causes and Cure,” Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1205–1223; Note, “Legal Theory and Legal Education,” Yale Law Journal, Vol. 79, No. 6 (May 1970), pp. 1153–1178.CrossRefGoogle Scholar
  19. 16.
    Kennedy, Duncan, “Cost-Benefit Analysis of Entitlement Problems: A Critique,” Stanford Law Review, Vol. 33 (1981) pp. 387–445.CrossRefGoogle Scholar
  20. 17.
    Statement of Critical Legal Studies Conference quote in Fitzpatrick & Hunt (eds.), supra note 3, p. 1.Google Scholar
  21. 18.
    Kornhauser, supra note 3, p. 352.Google Scholar
  22. 19.
    Ibid., pp. 353–357.Google Scholar
  23. 20.
    See Posner, Richard A., “Utilitarianism, Economics, and Legal Theory,” Journal of Legal Studies, Vol. 8 (1979), pp. 103–140; Posner, Richard A., “The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication,” Hofstra Law Review, Vol. 8 (1980), pp. 487–507.CrossRefGoogle Scholar
  24. 21.
    See, e.q., Fiss, supra note 3, p. 10. (“Critical legal studies scholars want to unmask the law, but not to make law into an effective instrument of good public policy or equality.”Google Scholar
  25. 22.
    Minow, supra note 3, p. 83.Google Scholar
  26. 23.
    Ibid., pp. 84–85.Google Scholar
  27. 24.
    These differences are also said to characterize the aspirations and personal style exhibited by members of each group. For example, Fiss has observed that “[t]he practitioners of law and economics tend to be better behaved; their mission more nearly accords with the traditions of the academy than does than of critical legal studies scholars.” Fiss, supra note 3, p. 2. See also, Kornhauser, supra note 3, p. 352 (describing the criticism of law and economics as “constructive” and that of CLS as “destructive”). See, e.g., Granetz, Marc; “Duncan the Doughnut,” New Republic, March 1, 1986, at p. 22 (describing the personal style of one well-known member of CLS, Duncan Kennedy, as the Abbie Hoffman of CLS). See also, Kennedy, supra note 2 (“CLS is a real-life revenge of the nerds, and nerds by definition have trouble in groups.”).Google Scholar
  28. 24.a
    Certainly law and economic scholars have not suffered the degree of scorn that some traditional legal scholars have exhibited toward practitioners of CLS. See Frug, Gerald, “McCarthyism and Critical Legal Studies,” Harvard Civil Rights Law Review, Vol. 22 (1987), p. 665. No one, for example, has suggested that practitioners of law and economics should leave the legal academy because they believe in a different legal vision or fail to share a particular creed. See Posner, supra note 3. Nor have the law and economics scholars experienced the tyep of tenure problems that CLS scholars have recently encountered. See, Kuttner, Robert, “Free Ideas at Harvard Law School Aren’t So Free,” The Boston Globe (May 18, 1987). See also, Bernstein E., “Profs Say Dalton Was Treated Unfairly,” The Harvard Crimson (May 13, 1987); Colodny M., “Bok Reluctant to Enter Dalton Tenure Dispute,” The Harvard Crimson (May 27, 1987). Indeed, while law and economic scholars are tolerated because they fit the traditional mold, CLSers are put down and ridiculed because they are thought to be nontraditional in their beliefs and life styles.Google Scholar
  29. 25.
    The two movements also project vastly different views about the nature and purpose of legal scholarship. CLS members, for example, have claimed that traditional legal scholarship has helped create and legitimate a world that tolerates wide discrepancies in wealth, class and social position. See Kennedy, Duncan, “Cost-Reduction Theory as Legitimatation,” Yale Law Journal Vol. 90 (1981), p. 1275. These scholars seeks to develop a new form of radical legal scholarship which is committed to a form of theory that shares a dialectical relation with radical practice. The objective of such work is to transform the prevailing legal consciousness of traditional scholars. Law and economic scholars, on the other hand, are much more traditional in their views about scholarship. These scholars argue that legal scholarship should be more like the natural sciences-that legal scholarship should concentrate on formulating and then testing falisifiable, law-like generalizations about social life. See generally, Tushnet, supra note 15, pp. 1211–1223.CrossRefGoogle Scholar
  30. 26.
    When applied to judicial decisionmaking, the criterion of wealth maximization provides that the decisionmaker should choose the set of decision-relevant standards that will assign rights and impose liabilities in a manner designed to bring about an increase in social wealth as measured in dollar equivalents. See Posner, supra note 20, p. 119.Google Scholar
  31. 27.
    Posner (1979), supra note 20, p. 103, and Posner (1980), supra note 20, p. 487.CrossRefGoogle Scholar
  32. 28.
    Posner, supra note 1, p. 19.Google Scholar
  33. 29.
    Unger, Roberto M., Knowledge and Politics (Free Press, 1975); p. 217 (describing the “paradox of sociability” as the “problem posed by the relation between self and others”).Google Scholar
  34. 30.
    Kelman, Mark G., “Trashing,” Stanford Law Review, Vol. 36, Nos. 1 & 2 (January 1984), pp. 293–348.CrossRefGoogle Scholar
  35. 31.
    See, e.g., Posner, Richard A., “Wealth Maximization and Judicial Decision-Making,” International Review of Law and Economics, Vol. 4 (December 1984), pp. 131–135.CrossRefGoogle Scholar
  36. 32.
    See, e.g., Boyle James, “The Politics of Reason: Critical Legal Theory and Local Social Thought,” University of Pennsylvania Law Review, Vol. 133, No. 4 (April 1985), pp. 685–780 at 691–705; Peller, Gary, “The Metaphysics of American Law,” California Law Review, Vol. 73, No. 4 (1985), pp. 1151–1290, at 1220–1259; Kitch, Edmund D., “The Intellectual Foundations of Law and Economics,” Journal of Legal Education, Vol. 33 (1983), pp. 184–196; Freeman, Alan D., “Truth and Mystification in Legal Scholarship,” Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1229–1237; Tushnet, Mark, “Post-Realist Legal Scholarship,” Journal of the Society of Public Teachers of Law, Vol. 15 (March 1980), pp. 20–32, at 21; Tushnet, Mark, “Critical Legal Studies: An Introduction to Its Origins and Underpinnings,” Journal of Legal Education, Vol. 36 (1986), pp. 505–517, at 505; Note, “Round and Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship,” Harvard Law Review, Vol. 95, No. 7 (May 1982), pp. 1669–1690; Note (1970), supra note 15. See also Mensch, Elizabeth, “The History of Mainstream Legal Thought,” ch. 2 in Kairys, David (ed.), The Politics of Law (New York: Pantheon Books, 1982); Unger, Roberto M., “The Critical Legal Studies Movement,” Harvard Law Review, Vol. 96 (January 1983), pp. 561–675. For a critical review of the relation between CLS and the legal realist movement, see White, G. Edward, “The Inevitability of Critical Legal Studies,” Stanford Law Review, Vol. 36, Nos. 1 & 2 (January 1984), pp. 649–672.CrossRefGoogle Scholar
  37. 32.a
    For general background of the American legal realism movement see, Purcell, Edward A., “The Rise of Legal Realism,” ch. 5 in The Crisis of Democratic Theory (Lexington: University of Kentucky Press, 1973); Schlegel, John H., “American Legal Realism and Empirical Social Science: From the Yale Experience,” Buffalo Law Review, Vol. 28, No. 4 (Fall 1979), pp. 459–586. See also Mensch, supra note 32, pp. 26–29.Google Scholar
  38. 33.
    Legal realism has been described as a “broad and dynamic attempt during the twenties and thirties to alter singificantly the assumptions of American Jurisprudence.” Purcell, supra note 32, p. 188. Peller has, in turn, argued that “it is apparent that the realists felt an immediacy and urgency to their work, a belief that they were part of a larger transformation extending across disciplines, a historic undermining of the dominant ideology.” Peller, supra note 32, p. 1220.Google Scholar
  39. 34.
    Peller, Ibid., p. 1212.Google Scholar
  40. 35.
    Legal realism has been said to have emerged from such early nineteenth-century traditions as pragmatism, instrumentalism, and progressivism. See White, Morton G. (ed.), Social Thought in America: The Revolt Against Formalism (Boston: Beacon Press, 1957).Google Scholar
  41. 36.
    Kennedy, Duncan, “Toward a Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” Research in Law and Sociology, Vol. 3 (1980), pp. 3–24.Google Scholar
  42. 37.
    Peller, supra note 32 p. 1193. As Peller has explained: “This era is associated with the well-known decisions in Coppage v. Kansas, 236 U.S. 1 (1915); where the Supreme Court struck down a Kansas statute forbidding employers to make nonunion affiliation a condition of employment; and in Lockner v. New York, 198 U.S. 45 (1905); where the Court struck down a New York statute limiting the workday of bakers to ten hours.” Ibid., pp. 1193–1194.Google Scholar
  43. 38.
    Minow, supra note 3, p. 93.Google Scholar
  44. 39.
    Note (1970), supra note 15.Google Scholar
  45. 40.
    Peller, a critical legal studies scholar, has recently demonstrated how one might come to understand the critique of legal realism in two different ways. See Peller, supra note 32, pp. 1219–1259. For a similar discussion of the different “traces” of legal realist thought, see Boyle, supra note 32, pp. 691–705, at 746–756.Google Scholar
  46. 41.
    Cohen, Felix S., “Transcendent Nonsense and the Functional Approach,” Columbia Law Review, Vol. 35, No. 6 (June 1935), pp. 809–849, for example, is a classic illustration of the work of a legal realist as “critic.” Felix Cohen demonstrated in his article how legal principles such as corporations, trade marks, or property rights, were flawed by contradiction and circularity of reasoning. Cohen’s effort was to deconstruct the legal concepts and arguments of the dominant discourse of the law in order to reveal how the legal abstractions were indeterminate and incoherent. See also Peller, supra note 32, p. 1227. Peller also reveals how the “deconstructive” strand of legal realism can be found in the work of other legal realists including Holmes and Robert Hale. Ibid., pp. 1230–40.CrossRefGoogle Scholar
  47. 41.a
    The deconstructive method seeks to reveal how legal rules and principles are indeterminate. Deconstruction was a method utilized by the legal realist to critique formalism. Deconstruction is also one of the main themes of critical legal studies. See Tushnet, Mark, “Introduction, Perspectives on Critical Legal Studies,” George Washington Law Review, Vol. 52, No. 3 (March 1984), pp. 239–242. See also Peller, Gary, “Reason and the Mob: The Politics of Representation,” Tikkun, Vol. 2, No. 3 (July/August 1987), pp. 28–31; Text & Notes infra, at notes 90–92.Google Scholar
  48. 42.
    Cohen, supra note 41, p. 810. See also Peller, supra note 32, p. 1229.CrossRefGoogle Scholar
  49. 43.
    The idea of “Realistic Jurisprudence” comes from Llewellyn’s famous article: Llewellyn, Karl N., “A Realistic Jurisprudence-he Next Step,” Columbia Law Review, Vol. 30, No. 4 (April 1930), pp. 431–465. Llewellyn argued that realistic jurisprudence would require judges to look beyond abstract legal verbalism and instead focus on behavioral factors-“the area of contact, of interseaction, between official regulatory behavior and the behavior of those affecting or affected by official regulatory behavior ….” Ibid., 464. The idea of realistic jurisprudence made the social sciences, including economics, relevant for law study. As Llewellyn put it: “When one approached the law, not with the idea of formulating its rules into a system, but with an eye to discovering how much it does or can effect… economic theory offers in many respects amazing light.” Ibid.CrossRefGoogle Scholar
  50. 44.
    Llewellyn, supra note 43, pp. 431–465. See also Purcell, supra note 32, p. 126 (“Llewellyn’s empirical approach concentrated on behavior as the proper subject of study for the legal scholar.”); Note (1970) supra note 15, p. 1169 wherein it’s stated: “Llewellyn based his realist approach on the possibility of formulating instrumental concepts or rules, flexible doctrines with specific purposes informed by broad intellectual inquiry and precise attention to behavior and consequences.”CrossRefGoogle Scholar
  51. 45.
    Frank, Jerome, Law and the Modern Mind (New York: Brentano’s 1930) pp. 140–141. As Purcell has explained: “Accepting most of Llewellyn’s ideas, Frank went far beyond them in earning his reputation as one of the most extreme realists. Whereas Llewellyn believed that rules and precedents were relevant and of some importance, Frank did not even consider them a meaningful part of the law….To him law meant a particular judicial determination upon a particular and singular set of facts. Reducing law to what he considered an unequivocal empirical minimum, Frank equated it solely with the specific individual judicial decision.” Purcell, supra note 32, pp. 126–127.Google Scholar
  52. 46.
    Note (1982) supra note 32, p. 1674. An example of such an effort can be found in Lassell, Harold D., and McDougal, Myres S., “Legal Education and Public Policy: Professional Training in the Public Interest,” Yale Law Journal, Vol. 52, No. 2 (March 1943), pp. 203–295.CrossRefGoogle Scholar
  53. 47.
    Peller, supra note 32, p. 1222; Cohen, Morris C., “Justice Holmes and the Nature of Law,” Columbia Law Review Vol. 31, No. 1 (January 1931), pp. 352–367, at 357–58; Dickerson, John, “Legal Rules: Their Function in the Process of Decision,” University of Pennsylvania Law Review, Vol. 79, No. 7 (May 1931), pp. 833–868; Fuller, Lon L., “American Legal Realism,” University of Pennsylvania Law Review, Vol. 82, No. 5 (March 1934), pp. 429–462; Harris, Rufus C, “Idealism Emergent in Jurisprudence,” Tulane Law Review, Vol. 10 No.2 (February 1936), pp. 169–187; Kantorowicz, Hermann, “Some Rationalism About Realism,” Yale Law Journal, Vol. 43, No. 8 (June 1934) pp. 1240–1253; Mechem, Philip, “The Jurisprudence of Despair,” Iowa Law Review, Vol. 21, No. 4 (May 1936), pp. 669–692, 672; Miltner, Charles C, “Law and Morals,” Notre Dame Lawyer, Vol. 10, No. 1 (November 1934), pp. 1–10, 8; Pound, Roscoe, “The Future of Law,” Yale Law Journal, Vol. 47, No. 1 (November 1937), pp. 1–13, at 2; Pound, Rescoe, “The Call for a Realist Jurisprudence,” Harvard Law Review, Vol. 44, No. 5 (March 1931), pp. 697–711.CrossRefGoogle Scholar
  54. 48.
    Ibid., pp. 697–711. See also Note (1982) supra note 32. at p. 1669, fn. 4.Google Scholar
  55. 49.
    See, e.g., Lasswell and McDougal, supra note 46. See also Purcell, supra note 32, pp. 74–94.Google Scholar
  56. 50.
    Such well-known realists as Thurmon Arnold, Charles Clark, Felix Cohen, Walton H. Hamilton, Jerome Frank, Rexford G. Tugwell, and William O. Douglas left teaching or practice careers for public service. See Note (1982) supra note 32 at p. 1675, fn. 41. See also, Mensch, supra note 32; Minow, supra note 3, p. 93. She stated: “Many of the Legal Ralists…. sought to establish anew the bases for law’s legitimacy…by trying through the New Deal to reorder through law. That New Deal experience launched the infusion of policy analysis into law; pragmatic social engineering with reliance on the good intentions of the social engineers supplied one route toward re-establishing law’s legitimacy. Others shifted the intellectual focus from substantive aims, now properly the domain of political conflict, and process values, the central preserve of law.”Google Scholar
  57. 51.
    Note (1982) supra note 32 at p. 1669.Google Scholar
  58. 52.
    Hart, H. L. A., The Concept of Law (London: Oxford University Press, 1961).Google Scholar
  59. 53.
    Wechsler, Herbert H., “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, Vol. 73, No. 1 (November 1959), pp. 1–35, reprinted in Wechsler, Herbert, Principles, Politics, and Fundamental Law: Selected Essays, 3rd ed. (Cambridge: Harvard University Press, 1961). See also Greenawalt, Kent, “The Enduring Significance of Neutral Principles,” Columbia Law Review, Vol. 78, No. 5 (June 1978), pp. 982–1021.CrossRefGoogle Scholar
  60. 54.
    Hart, Henry M., and Sacks, Albert M (tent, ed.), The Legal Process: Basic Problems in the Making and Application of Law (Unpublished manuscript, Harvard University Law School, 1958).Google Scholar
  61. 55.
    See Schlegel, supra note 32, pp. 459–460.Google Scholar
  62. 56.
    See Minow, supra note 3, p. 93.Google Scholar
  63. 57.
    Greenwalt, supra note 53, pp. 982–983.Google Scholar
  64. 58.
    334 U.S. 1 (1948). In Shelley v. Kramer, the Supreme Court invalidated a racially restrictive covenant in a private contract for the same of law which discriminated on the grounds that the enforcement of the convenant constituted impermissible state action under the fourteenth amendment.Google Scholar
  65. 59.
    349 U.S. 294 (1954). In Brown, a unanimous Supreme Court declared that the equal protection clause of the fourteenth amendment forbid racial segregation in the public schools.Google Scholar
  66. 60.
    See Greenwalt, supra note 53, p. 983; Wechsler, supra note 53, p. 1. Bickel, Alexander, The Supreme Court and the Idea of Progress (New Haven: Yale University Press, 1978); Kirkland, Philip, Politics, The Constitution and the Warren Court (Chicago: University of Chicago Press, 1970).Google Scholar
  67. 61.
    See Note (1970), supra note 15.Google Scholar
  68. 62.
  69. 63.
    See Minow, supra note 3, p. 94. Both law and economics and critical legal studies reject the widely held view of lawyers and judges that legal problems can be analyzed and studied “autonomously” by objective methods of legal reasoning and analysis.Google Scholar
  70. 64.
    See Fiss, supra note 3.Google Scholar
  71. 65.
    See, e.g., Easterbrook, Frank H., “Foreword: The Court And The Economic System,” Harvard Law Review, Vol. 98, No. 1 (November 1984), pp. 4–60, at 8–9 (law and economic scholar arguing that the dominant methods of the judicial process are unprincipled and inconsistent); Brest, supra note 15 (CLS scholar arguing that liberal theories of constitutional scholarship are essentially incoherent and indeterminate).CrossRefGoogle Scholar
  72. 66.
    See, e.g., Easterbrook, Frank H., “Method, Result, and Authority: A Reply,” Harvard Law Review, Vol. 98, No. 3 (January 1985), pp. 622–629, at 622. (Arguing that “scarcity,” “choice,” and “self-interested conduct” are “the facts of life” to which judges must respond in legal decisionmaking). See also Peller, Gary, “The Politics of Reconstruction,” Harvard Law Review, Vol. 98, No. 4 (February 1985), pp. 863–881, at 864 (describing how “liberal reformist legal thinkers” are challenged by “law-and-economics adherents’ claims to scientific rigor and hardheaded realism about the way things are”).CrossRefGoogle Scholar
  73. 67.
    Easterbrook, supra note 66, p. 629.CrossRefGoogle Scholar
  74. 68.
    See, e.g., Tribe, Lawrence H., “Constitutional Calculus: Equal Justice or Economic Efficiency?,” Harvard Law Review, Vol. 98, No. 3 (January 1985), pp. 592–621.CrossRefGoogle Scholar
  75. 69.
    Easterbrook, supra note 66.CrossRefGoogle Scholar
  76. 70.
    See, e.g., Gordon, supra note 15 (describing the various “responsive modes” of traditional legal scholarship in denying “the historical and cultural contingency of law”); Hutchinson, Allen C., and Monahan, Patrick J., “Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought,” Stanford Law Review, Vol. 36. No. 1 (January 1984), pp. 199–245, at 202–8.CrossRefGoogle Scholar
  77. 71.
    See, e.g., Monahan, Patrick J., “Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought,” Stanford Law Review, Vol. 36. No. 1 (January 1984), pp. 199–245 Ibid. (“The central thrust of the Critical critique is that all such efforts to reconstruct American legal thought in the wake of the Realists’ challenge are doomed to failure, and that they simply offer more cogent evidence of the bankruptcy of mainstream legal thought.”) See also Schlegel, John H., “Introduction,” Buffalo Law Review, Vol. 28, No. 4 (Fall 1979), p. 203; Mensch, supra note 32, pp. 29–37.CrossRefGoogle Scholar
  78. 72.
    See, e.g., Posner, supra note 3; Easterbrook, supra note 65; Tushnet, Mark, “Critical Legal Studies: An Introduction to Its Origins and Underpinnings,” Journal of Legal Education, Vol. 36, No. 4 (December 1986), pp. 505–517; Unger, supra note 32.CrossRefGoogle Scholar
  79. 73.
    Ibid., p. 773.Google Scholar
  80. 74.
  81. 75.
    Easterbrook, supra note 65, p. 4.CrossRefGoogle Scholar
  82. 76.
    Borrowing from the field of literary criticism, critical theorists have challenged the notion that legal texts contain meanings which can be “correctly” discovered by utilizing “authoritative” interpretative methods. See, e.g., Kennedy, David, “The Turn to Interpretation,” Southern California Law Review, Vol. 58, No. 1 (January 1985), pp. 251–275; Frug, “Henry James, Lee Marvin and the Law,” New York Times Book Review Magazine (February 16, 1986). See also, Minda, Gary, “Phenomenology, Tina Turner and the Law,” New Mexico Law Review, Vol. 16, No. 2 (Fall 1986), pp. 479–493, at 487, fn. 34. By deconstructing legal texts into equally plausible countermeanings, these educators have sought to illustrate how a community of legal interpreters have performed an ideological function by creating legal meanings that fail to perceive honest differences and alternative ways of being. Their goal is to empower the reader so that he/she can evaluate the inescapably ideological character of legal thought. For a general introduction to deconstruction as a new critical attitude toward interpretation see Peller (1987), supra note 41, pp. 28–31, 92–93.Google Scholar
  83. 77.
    See, e.g., Brest, supra note 14, p. 771.Google Scholar
  84. 78.
    See, e.g., Posner, supra note 3, p. 773–774.Google Scholar
  85. 79.
    Ibid. See also Freeman, Alan, “Truth and Mystification in Legal Scholarship,” Yale Law Journal, Vol. 90, No. 5 (April 1981), pp. 1229–1237, at 1233–1234.CrossRefGoogle Scholar
  86. 80.
    See, e.g., Mensch, supra note 32, p. 406.Google Scholar
  87. 81.
    See Boyle, supra note 32; Note (1982), supra note 32, p. 1667.CrossRefGoogle Scholar
  88. 82.
    See, e.g., Boyle, supra note 32. Peller, supra note 32.CrossRefGoogle Scholar
  89. 83.
    Kelman, Mark M., A Guide to Critical Legal Studies (Cambridge, Harvard University Press, 1987).Google Scholar
  90. 84.
    Ibid., p. 184.Google Scholar
  91. 85.
    See Boyle, supra note 32, p. 707.CrossRefGoogle Scholar
  92. 86.
    Ibid., p. 706.CrossRefGoogle Scholar
  93. 87.
    Indeed, there is now a growing body of critical legal scholarship which seeks to critique law and economics scholarship. See, e.g., Kelman, Mark G., “Misunderstanding Social Life: A Critique of the Core Premises of “Law and Economics,” Journal of Legal Education, Vol. 33, No. 2 (1983), pp. 274–284; Kelman, Mark G., “Consumption Theory, Production Theory and Ideology in the Coase Theorem,” Southern California Law Review, Vol. 52, No. 3 (March 1979), pp. 669–698; Kelman, Mark G., “Choice and Utility,” Wisconsin Law Review, Vol. 1979, No. 3 (1979), pp. 769–797. Kennedy, Duncan, “Distributive and Paternalist Moves in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power,” Maryland Law Review, Vol. 41, No. 4 (1982), pp. 563–658. Kennedy, supra note 16. Kennedy, Duncan, and Michelman, Frank, “Are Property and Contract Efficient?” Hofstra Law Review, Vol. 8, No. 3 (Spring 1980), pp. 711–770. These CLS critiques of the law and economics scholarship advance the general form of critique CLS scholars utilize in critiquing mainstream scholarship. Thus, CLS scholars argue that there is simply no politically neutral, coherent way to talk about whether a legal decision is efficient, wealth-maximizing, or whether benefits outweigh costs. For a summary of the specific critiques see Kelman, supra note 83.Google Scholar
  94. 88.
    Boyle, supra note 32, p. 707.CrossRefGoogle Scholar
  95. 89.
    Ibid., p. 705.Google Scholar
  96. 90.
    Peller, supra note 32, p. 1154.Google Scholar
  97. 91.
    Ibid., p. 1155.Google Scholar
  98. 92.
    See Minda, supra note 76, p. 490.Google Scholar
  99. 93.
    Easterbrook, supra note 66, p. 622.CrossRefGoogle Scholar
  100. 94.
    Posner, supra note 3, p. 768.Google Scholar
  101. 95.
    Unger, Roberto M., Passion: An Essay on Personality (New York: The Free Press, 1984).Google Scholar
  102. 96.
    See, e.g., White, supra note 32.Google Scholar
  103. 97.
    Posner, supra note 3, p. 766.Google Scholar
  104. 98.
    See Bell, Daniel, “The End of Ideology” (Glencoe IL: The Free Press, 1960).Google Scholar
  105. 99.
    See Carrington, supra note 13.Google Scholar
  106. 100.
    See Fiss, supra note 3, Hegland, Kenney, “Goodbye to Deconstruction,” California Law Review, Vol. 58, No. 5 (July 1985), pp. 1203–1221.Google Scholar
  107. 101.
    Fiss, supra note 3, p. 1.Google Scholar
  108. 102.
    Ibid., p. 4.Google Scholar
  109. 103.
    Ibid., p. 5.Google Scholar
  110. 104.
    Ibid., p. 5.Google Scholar
  111. 105.
    Ibid., p. 8.Google Scholar
  112. 106.
    Ibid., p. 10.Google Scholar
  113. 107.
    Ibid., p. 12.Google Scholar
  114. 108.
    Ibid., p. 13.Google Scholar
  115. 109.
    Ibid., p. 15.Google Scholar
  116. 110.
    Ibid., p. 11, where Fiss also acknowledges that his assumptions are “open to a factual challenge, as any empirical claim must be.”Google Scholar
  117. 111.
    See Unger, supra note 29.Google Scholar
  118. 112.
    See also Minda, supra note 13.Google Scholar
  119. 113.
    Peller, supra note 66.Google Scholar
  120. 114.
    Ackerman, Bruce A., Reconstructing American Law (New Haven: Yale University Press, 1984), p. 44. See Peller, supra note 66.Google Scholar
  121. 115.
    See Minow, supra note 3.Google Scholar
  122. 116.
    Ibid., p. 97.Google Scholar
  123. 117.
    Ibid., p. 97.Google Scholar
  124. 118.
    Ibid., p. 99.Google Scholar
  125. 119.
    Ackerman, supra note 114, pp. 44–45.Google Scholar
  126. 120.
    Ibid., p. 3.Google Scholar
  127. 121.
    Ibid., p. 42. Ackerman argues that there are two structures to his new discourse: one for establishing “facts”; the other for establishing “values.” The language of law and economics would be used to determine facts, and common discourse of the “people” would be used to determine “values.” Ibid., pp. 29, 79–80. See also, Peller, supra note 66, pp. 867–868. “Ackerman’s strategy for the liberal-reformist center is to incorporate conservative law-and-economic discourse into the ‘main line of conversation’ for the legal description of facts yet preserve traditional liberal discourse for the discussion of values,” at p. 869.Google Scholar
  128. 122.
    Ibid., pp. 880–881.Google Scholar
  129. 123.
    See Kuhn, Thomas S., The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970).Google Scholar
  130. 124.
    Lyons, David, “Constitutional Interpretation and Original Meaning,” Society Philosophy and Policy, Vol. 4, No. 1 (Autumn 1986), p. 75.CrossRefGoogle Scholar

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© Kluwer Academic Publishers 1989

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  • Gary Minda

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