Friday, July 16, 2010
Dispatches from the front, circa 1989
From Fred S. McChesney, "Economics, Law, and Science in the Corporate Field: A Comment on Eisenberg," 89 Colum. L. Rev. 1530, 1530 (1989):
As American history demonstrates, the colonization of one territory by inhabitants of another creates at least two problems. First, the colonizers and colonized usually do not speak the same language, and thus must learn to communicate. Ordinarily, the language of the colonizers comes to dominate, a development rarely pleasing to the colonized. Second, patterns of property ownership will likely be disrupted, as colonizers acquire (often by force) rights previously held by the colonized.
The colonization of some fields of law by economic analysis fits this historical pattern. Economics provides a powerful “tool kit” with which to analyze law. It has proven difficult, however, for some adherents of more traditional approaches to law to come to understand the different form of analysis that the use of economic methods entails. Moreover, the economic approach has reduced the value of lawyers' more traditional but less powerful methods of legal analysis. Not surprisingly, many lawyers have objected to the intrusion of economic analysis into law on both grounds.
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Back in 1989, how many members of the federal judiciary were well versed in economics? Also, today, how many? Has the influence of economics resulted from variations on the Brandeis briefs that contain economic modeling? We know that Judge Posner has for years included economic analysis not only in his case opinions but in other writings, including a quite recent shift from his earlier view. Today, economic modeling does not seem to work well. So might judicial modeling (if there is such a thing) start to challenge economic modeling?
Posted by: Shag from Brookline | Jul 17, 2010 6:52:09 AM
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