The Mind and Heart of Progressive Legal Thought

Iowa Law Review

Volumn 81, Issue 1, 1995, Pages 149-160

  Hovenkamp, Herbert ^a  

^a UNIVERSITY OF IOWA   (United States)

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EID: 0029464696     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (45)

1. Charles Darwin, The Descent of Man, and Selection in Relation to Sex (London, W. Pickering 1871).
2. William Stanley Jevons, The Theory of Political Economy (London, MacMillan 1871).
3. Ronald R. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).
4. James M. Landis, Report on Regulatory Agencies to the President-elect (1960).
5. See Thomas K. McCraw, Prophets of Regulation 210, 215, 219-20, 234-35 (1984) (describing the influence of Progressive economists and jurists on regulatory policy); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975) (same). For a much more optimistic work on reforming administrative law, see James M. Landis, The Administrative Process (1938).
6. See Thomas K. McCraw, Prophets of Regulation 210, 215, 219-20, 234-35 (1984) (describing the influence of Progressive economists and jurists on regulatory policy); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975) (same). For a much more optimistic work on reforming administrative law, see James M. Landis, The Administrative Process (1938).
7. See Thomas K. McCraw, Prophets of Regulation 210, 215, 219-20, 234-35 (1984) (describing the influence of Progressive economists and jurists on regulatory policy); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975) (same). For a much more optimistic work on reforming administrative law, see James M. Landis, The Administrative Process (1938).
8. Kenneth J. Arrow, Social Choice and Individual Values (2d ed. 1963).
9. James M. Buchanan & Gordon Tullock, The Calculus of Consent (1962).
10. See generally, Mary O. Furner, Advocacy and Objectivity; A Crisis in the Professionalization of American Social Science, 1865-1905 (1975) (describing the influence of theory of evolution on social science theory); Dorothy Ross, The Origins of American Social Science (1991) (same).
11. See generally, Mary O. Furner, Advocacy and Objectivity; A Crisis in the Professionalization of American Social Science, 1865-1905 (1975) (describing the influence of theory of evolution on social science theory); Dorothy Ross, The Origins of American Social Science (1991) (same).
12. See Herbert Hovenkamp, Evolutionary Models in Jurisprudence, 64 Tex. L. Rev. 645 (1985) (describing the influence of theory of evolution on American legal and political thought).
13. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (J.H. Burns & H.L.A. Hart eds., 1970) (1789); Jeremy Bentham, The Theory of Legislation (posthumous) (R. Hildreth trans., 1896) (London, Kegan, Paul, Trendi, Trubner & Co. 1896). Bentham did not come close to developing the theory of marginal cost or theories of value based on marginalism.
14. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (J.H. Burns & H.L.A. Hart eds., 1970) (1789); Jeremy Bentham, The Theory of Legislation (posthumous) (R. Hildreth trans., 1896) (London, Kegan, Paul, Trendi, Trubner & Co. 1896). Bentham did not come close to developing the theory of marginal cost or theories of value based on marginalism.
15. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
16. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
17. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
18. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
19. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
20. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
21. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
22. William Stanley Jevons, The Theory of Political Economy (3d ed. London, MacMillan 1888). Alfred Marshall also deserves part of the credit. See The Early Economic Writings of Alfred Marshall (J.K. Whitaker ed., 1975) (early marginalist essays). In the United States, John Bates Clark probably came to his marginalism independently. See John Bates Clark, The Philosophy of Wealth 56-90 (Boston, Ginn & Co. 1886); Joseph A. Schumpeter, History of Economic Analysis 868 (1954) (discussing the independence of Clark's marginalism); see also Carl Menger, Principles of Economics (James Dingwall & Bert F. Hoselitz trans., 1981) (1871) (applying the marginal utility theory to value and price theory). Menger's work was less influential in the United States than Jevons's work, since Menger stood outside the British classical tradition. However, a large group of American graduate students in political economy who went abroad for graduate study in the late nineteenth century ended up on the Continent, especially in Germany, and many of them studied Menger. For a discussion of the influence of German historicism on Progressive Era economics, see Furner, supra note 8, at 50-58; Ross, supra note 8, at 104-06; Herbert Hovenkamp, The First Great Law & Economics Movement, 42 Stan. L. Rev. 993, 996-97 (1990).
23. Jevons, supra note 2, at 1.
24. "[W] hen the person remains satisfied with the distribution he has made, it follows that . . . an increment of commodity would yield exactly as much utility in one use as in another." Id. at 59.
25. The great marginalist economist Alfred Marshall knew that the whole notion of subjective preference meant nothing at all unless preference could be measured behaviorally. Thus, one could speak meaningfully of consumer demand only "as represented by the schedule of the prices at which he is willing to buy different amounts of [something]." Alfred Marshall, Principles of Economics 158 (London, MacMillan 1890). In his highly influential eighth edition, Marshall wrote: If then we wish to compare . . . physical gratifications, we must do it not directly, but indirectly by the incentives which they afford to action. If the desires to secure either of two pleasures will induce people in similar circumstances each to do just an hour's extra work, or will induce men in the same rank of life and with the same means each to pay a shilling for it; we then may say that those pleasures are equal for our purposes, because the desires for them are equally strong incentives to action for persons under similar conditions. Alfred Marshall, Principles of Economics 13 (8th ed. 1920).
26. The great marginalist economist Alfred Marshall knew that the whole notion of subjective preference meant nothing at all unless preference could be measured behaviorally. Thus, one could speak meaningfully of consumer demand only "as represented by the schedule of the prices at which he is willing to buy different amounts of [something]." Alfred Marshall, Principles of Economics 158 (London, MacMillan 1890). In his highly influential eighth edition, Marshall wrote: If then we wish to compare . . . physical gratifications, we must do it not directly, but indirectly by the incentives which they afford to action. If the desires to secure either of two pleasures will induce people in similar circumstances each to do just an hour's extra work, or will induce men in the same rank of life and with the same means each to pay a shilling for it; we then may say that those pleasures are equal for our purposes, because the desires for them are equally strong incentives to action for persons under similar conditions. Alfred Marshall, Principles of Economics 13 (8th ed. 1920).
27. Edwin R.A. Seligman, Progressive Taxation in Theory and Practice, 9 Publication Am. Econ. Ass'n 1, 132-33 (1894); Edwin R.A. Seligman, The Theory of Progressive Taxation, 8 Publication Am. Econ. Ass'n 52 (1893). See also Hovenkamp, supra note 11, at 1002-05 (discussing efforts to use interpersonal comparisons of utility to justify progressivity in income taxation).
28. Edwin R.A. Seligman, Progressive Taxation in Theory and Practice, 9 Publication Am. Econ. Ass'n 1, 132-33 (1894); Edwin R.A. Seligman, The Theory of Progressive Taxation, 8 Publication Am. Econ. Ass'n 52 (1893). See also Hovenkamp, supra note 11, at 1002-05 (discussing efforts to use interpersonal comparisons of utility to justify progressivity in income taxation).
29. Edwin R.A. Seligman, Progressive Taxation in Theory and Practice, 9 Publication Am. Econ. Ass'n 1, 132-33 (1894); Edwin R.A. Seligman, The Theory of Progressive Taxation, 8 Publication Am. Econ. Ass'n 52 (1893). See also Hovenkamp, supra note 11, at 1002-05 (discussing efforts to use interpersonal comparisons of utility to justify progressivity in income taxation).
30. See Lionel C. Robbins, An Essay on the Nature and Significance of Economic Science (2d ed. 1935) (Robbins's original argument against interpersonal utility comparisons); Hovenkamp, supra note 11, at 1033-47 (discussing Robbins).
31. See Lionel C. Robbins, An Essay on the Nature and Significance of Economic Science (2d ed. 1935) (Robbins's original argument against interpersonal utility comparisons); Hovenkamp, supra note 11, at 1033-47 (discussing Robbins).
32. Oliver W. Holmes, Jr., The Common Law (Boston, Little, Brown & Co. 1881).
33. Herbert Hovenkamp, The Marginalist Revolution in Legal Thought, 46 Vand. L. Rev. 305, 335-45 (1993).
34. See Herbert Hovenkamp, Enterprise and American Law, 1836-1937, at 247-307 (1991).
35. See, e.g., the 1950 Celler-Kefauver amendments to the antimerger statute, 15 U.S.C. § 18 (1988) (applying restraints on corporations in their acquisition of another corporation's stock); H.R. Rep. No. 1191, 81st Cong., 1st Sess. 8 (1949) (discussing goals of merger policy as protecting smaller firms from larger, lower cost rivals). The new merger policy, designed to prevent small, high cost firms from being "gobbled up" by larger, more efficient firms was hailed as a triumph of law and economics. See Derek C. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226 (1960) (criticizing anti-big business bias in Eisenhower era antitrust policy); Herbert Hovenkamp, Derek Bok and the Merger of Law and Economics, 21 J.L. Reform 515 (1988) (same).
36. See, e.g., the 1950 Celler-Kefauver amendments to the antimerger statute, 15 U.S.C. § 18 (1988) (applying restraints on corporations in their acquisition of another corporation's stock); H.R. Rep. No. 1191, 81st Cong., 1st Sess. 8 (1949) (discussing goals of merger policy as protecting smaller firms from larger, lower cost rivals). The new merger policy, designed to prevent small, high cost firms from being "gobbled up" by larger, more efficient firms was hailed as a triumph of law and economics. See Derek C. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226 (1960) (criticizing anti-big business bias in Eisenhower era antitrust policy); Herbert Hovenkamp, Derek Bok and the Merger of Law and Economics, 21 J.L. Reform 515 (1988) (same).
37. See, e.g., the 1950 Celler-Kefauver amendments to the antimerger statute, 15 U.S.C. § 18 (1988) (applying restraints on corporations in their acquisition of another corporation's stock); H.R. Rep. No. 1191, 81st Cong., 1st Sess. 8 (1949) (discussing goals of merger policy as protecting smaller firms from larger, lower cost rivals). The new merger policy, designed to prevent small, high cost firms from being "gobbled up" by larger, more efficient firms was hailed as a triumph of law and economics. See Derek C. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226 (1960) (criticizing anti-big business bias in Eisenhower era antitrust policy); Herbert Hovenkamp, Derek Bok and the Merger of Law and Economics, 21 J.L. Reform 515 (1988) (same).
38. See, e.g., the 1950 Celler-Kefauver amendments to the antimerger statute, 15 U.S.C. § 18 (1988) (applying restraints on corporations in their acquisition of another corporation's stock); H.R. Rep. No. 1191, 81st Cong., 1st Sess. 8 (1949) (discussing goals of merger policy as protecting smaller firms from larger, lower cost rivals). The new merger policy, designed to prevent small, high cost firms from being "gobbled up" by larger, more efficient firms was hailed as a triumph of law and economics. See Derek C. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226 (1960) (criticizing anti-big business bias in Eisenhower era antitrust policy); Herbert Hovenkamp, Derek Bok and the Merger of Law and Economics, 21 J.L. Reform 515 (1988) (same).
39. E.g., Arrow, supra note 6 (questioning the possibility of maximizing social welfare through the aggregation of individual choices); Buchanan & Tullock, supra note 7 (analyzing "methodological individualism" in the context of constitutional choices and decision-making rules).
40. E.g., Arrow, supra note 6 (questioning the possibility of maximizing social welfare through the aggregation of individual choices); Buchanan & Tullock, supra note 7 (analyzing "methodological individualism" in the context of constitutional choices and decision-making rules).
41. E.g., Coase, supra note 3 (discussing the role of private bargaining in unregulated markets during the 1960s).
42. 347 U.S. 483 (1954).
43. See generally Gordon Tullock, Economics of Income Redistribution 111-50 (1983) (explaining how social security and medicare primarily benefit those individuals in the upper and middle classes); Gordon Tullock, The Economics of Special Privilege and Rent Seeking (1989) (arguing that governmental income transfers typically benefit the middle and upper classes as opposed to the poor).
44. See generally Gordon Tullock, Economics of Income Redistribution 111-50 (1983) (explaining how social security and medicare primarily benefit those individuals in the upper and middle classes); Gordon Tullock, The Economics of Special Privilege and Rent Seeking (1989) (arguing that governmental income transfers typically benefit the middle and upper classes as opposed to the poor).
45. Coase, supra note 3.