Postmodern economic analysis of law: Extending the pragmatic visions of Richard A. Posner

American Business Law Journal

Volumn 36, Issue 1, 1998, Pages 193-238

  Ostas, Daniel T ^a  

^a UNIVERSITY OF MARYLAND   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042415646     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1998.tb01019.x     Document Type: Article

References (183)

1. Hereinafter the term "EAL" will refer to the Chicago school approach to interdisciplinary work in law & economics. The use of an ampersand will indicate interdisciplinary work generally. For a concise, noncritical statement of the various approaches to law & economics see NICHOLAS MERCURO & STEVEN G. MEDEMA, ECONOMICS AND THE LAW (1997) (comparing and contrasting the Chicago school, the New Haven school, public choice theory, modern civic republicanism, institutional law & economics, neoinstitutional law & economics, and Marxian legal theory).
2. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 19 (3rd ed. 1986) (dating the birth of EAL with Coase and Calabresi). See generally Ronald Coase, The Problems of Social Cost, 3 J.L. & ECON. 1 (1960) (exploring the economic logic of nuisance law); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961) (assessing the economic logic of tort law). For further discussion of the early history of EAL at Chicago see MERCURO & MEDEMA, supra note 1, at 51-56. S ee also Ronald Coase, Law and Economics at Chicago, 36 J.L. & ECON. 239 (1993).
3. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 19 (3rd ed. 1986) (dating the birth of EAL with Coase and Calabresi). See generally Ronald Coase, The Problems of Social Cost, 3 J.L. & ECON. 1 (1960) (exploring the economic logic of nuisance law); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961) (assessing the economic logic of tort law). For further discussion of the early history of EAL at Chicago see MERCURO & MEDEMA, supra note 1, at 51-56. S ee also Ronald Coase, Law and Economics at Chicago, 36 J.L. & ECON. 239 (1993).
4. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 19 (3rd ed. 1986) (dating the birth of EAL with Coase and Calabresi). See generally Ronald Coase, The Problems of Social Cost, 3 J.L. & ECON. 1 (1960) (exploring the economic logic of nuisance law); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961) (assessing the economic logic of tort law). For further discussion of the early history of EAL at Chicago see MERCURO & MEDEMA, supra note 1, at 51-56. S ee also Ronald Coase, Law and Economics at Chicago, 36 J.L. & ECON. 239 (1993).
5. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 19 (3rd ed. 1986) (dating the birth of EAL with Coase and Calabresi). See generally Ronald Coase, The Problems of Social Cost, 3 J.L. & ECON. 1 (1960) (exploring the economic logic of nuisance law); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961) (assessing the economic logic of tort law). For further discussion of the early history of EAL at Chicago see MERCURO & MEDEMA, supra note 1, at 51-56. S ee also Ronald Coase, Law and Economics at Chicago, 36 J.L. & ECON. 239 (1993).
6. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (1st ed. 1973). Posner's textbook entered a fifth edition in 1998.
7. For an early assessment of the impact of EAL on legal education see Symposium, The Place of Economics in legal Education, 33 J. LEGAL ED. 183 (1983). The impact of EAL on legal scholarship is assessed in William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quantitative Study, 36 J.L. & ECON. 385 (1993).
8. For an early assessment of the impact of EAL on legal education see Symposium, The Place of Economics in legal Education, 33 J. LEGAL ED. 183 (1983). The impact of EAL on legal scholarship is assessed in William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quantitative Study, 36 J.L. & ECON. 385 (1993).
9. See POSNER, supra note 2, at 21 (distinguishing normative from positive claims for EAL); see also Richard A. Posner, Some Uses and Abuses of Economics in Law, 46 U. CHI. L. REV. 281, 288-91 (1979) (providing a clear and concise statement of the efficiency hypothesis).
10. The first edition of Posner's ECONOMIC ANALYSIS OF LAW was widely reviewed. See, e.g., James M. Buchanan, Good Economics - Bad Law, 60 VA. L. REV. 483 (1974); Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 VA. L. REV. 451 (1974); A. Mitchell Polinsky, Economic Analysis as a Potentially Defective Product: A Buyer's Guide to Posner's "Economic Analysis of Law," 87 HARV. L. REV. 1655 (1974).
11. The first edition of Posner's ECONOMIC ANALYSIS OF LAW was widely reviewed. See, e.g., James M. Buchanan, Good Economics - Bad Law, 60 VA. L. REV. 483 (1974); Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 VA. L. REV. 451 (1974); A. Mitchell Polinsky, Economic Analysis as a Potentially Defective Product: A Buyer's Guide to Posner's "Economic Analysis of Law," 87 HARV. L. REV. 1655 (1974).
12. The first edition of Posner's ECONOMIC ANALYSIS OF LAW was widely reviewed. See, e.g., James M. Buchanan, Good Economics - Bad Law, 60 VA. L. REV. 483 (1974); Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 VA. L. REV. 451 (1974); A. Mitchell Polinsky, Economic Analysis as a Potentially Defective Product: A Buyer's Guide to Posner's "Economic Analysis of Law," 87 HARV. L. REV. 1655 (1974).
13. The first edition of Posner's ECONOMIC ANALYSIS OF LAW was widely reviewed. See, e.g., James M. Buchanan, Good Economics - Bad Law, 60 VA. L. REV. 483 (1974); Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 VA. L. REV. 451 (1974); A. Mitchell Polinsky, Economic Analysis as a Potentially Defective Product: A Buyer's Guide to Posner's "Economic Analysis of Law," 87 HARV. L. REV. 1655 (1974).
14. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 107-08 (1977); Morton J. Horwitz, Law and Economics: Science Or Politics?, 8 HOFSTRA L. REV 905 (1980); Leff, supra note 6; Gary Minda, The Lawyer-Economist at Chicago: Richard Posner and the Economic Analysis of Law, 39 OHIO ST. L.J. 439 (1978).
15. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 107-08 (1977); Morton J. Horwitz, Law and Economics: Science Or Politics?, 8 HOFSTRA L. REV 905 (1980); Leff, supra note 6; Gary Minda, The Lawyer-Economist at Chicago: Richard Posner and the Economic Analysis of Law, 39 OHIO ST. L.J. 439 (1978).
16. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 107-08 (1977); Morton J. Horwitz, Law and Economics: Science Or Politics?, 8 HOFSTRA L. REV 905 (1980); Leff, supra note 6; Gary Minda, The Lawyer-Economist at Chicago: Richard Posner and the Economic Analysis of Law, 39 OHIO ST. L.J. 439 (1978).
17. See, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximazation 8 HOFSTRA L. REV. 509 (1980) (discussing EAL in light of two forms of utilitarianism and arguing that neither provides an adequate grounding in justice); Richard A. Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. LEGAL STUD. 49, 74-75 (1979). For examples of the dismissive treatment of utilitarianism by modern philosophers see Bernard Williams, A Critique of Utilitarianism, in UTILITARIANISM FOR AND AGAINST 77 (J.J.C. Smart & Bernard Williams eds., 1967).
18. See, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximazation 8 HOFSTRA L. REV. 509 (1980) (discussing EAL in light of two forms of utilitarianism and arguing that neither provides an adequate grounding in justice); Richard A. Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. LEGAL STUD. 49, 74-75 (1979). For examples of the dismissive treatment of utilitarianism by modern philosophers see Bernard Williams, A Critique of Utilitarianism, in UTILITARIANISM FOR AND AGAINST 77 (J.J.C. Smart & Bernard Williams eds., 1967).
19. See, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximazation 8 HOFSTRA L. REV. 509 (1980) (discussing EAL in light of two forms of utilitarianism and arguing that neither provides an adequate grounding in justice); Richard A. Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. LEGAL STUD. 49, 74-75 (1979). For examples of the dismissive treatment of utilitarianism by modern philosophers see Bernard Williams, A Critique of Utilitarianism, in UTILITARIANISM FOR AND AGAINST 77 (J.J.C. Smart & Bernard Williams eds., 1967).
20. See, e.g., Buchanan, supra note 6 (arguing that EAL is inconsistent with libertarian values); Richard A. Epstein, The Next Generation of Legal Scholarship?, 30 STAN. L. REV. 635 (1978) (same).
21. See, e.g., Buchanan, supra note 6 (arguing that EAL is inconsistent with libertarian values); Richard A. Epstein, The Next Generation of Legal Scholarship?, 30 STAN. L. REV. 635 (1978) (same).
22. More precisely, CLS provides a critique of liberal ideology generally. See MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 1-14 (1987). On the relationship between EAL and CLS, Professor Kelman writes: "[S]ince a fair number of CLS writers attacked Law and Economics writing, either in detail or in passing, CLS is often viewed by outsiders unfamiliar with the range of CLS as predominantly an anti-Law and Economics group." Id. at 114 (footnotes omitted). He explains that EAL "is the best worked-out, most consummated liberal ideology of the sort that CLS has tried both to understand and critique." Id. He then provides citations to sixteen representative CLS critiques of EAL Id. at 114 nn.1-2.
23. See e.g., Richard A. Posner, A Reply to Some Recent Criticisms of the Efficiency Theory of the Common Law, 9 HOFSTRA L. REV. 775 (1981); Richard A. Posner, The Economic Approach to Law, 53 TEX. L. REV. 757 (1975) (addressing and dismissing a series of eight criticisms directed at EAL generally: method too imprecise; based on discredited utilitarianism; people are not rational maximizers; tautological; conservative political bias; undervalues liberty; ignores distributive justice; not based on justice).
24. See e.g., Richard A. Posner, A Reply to Some Recent Criticisms of the Efficiency Theory of the Common Law, 9 HOFSTRA L. REV. 775 (1981); Richard A. Posner, The Economic Approach to Law, 53 TEX. L. REV. 757 (1975) (addressing and dismissing a series of eight criticisms directed at EAL generally: method too imprecise; based on discredited utilitarianism; people are not rational maximizers; tautological; conservative political bias; undervalues liberty; ignores distributive justice; not based on justice).
25. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 13-14 (2d ed. 1977) ("[E]conomic theory has been shown to have surprising predictive power with respect to the behavior of criminals, prosecutors, common law judges, and other legal system participants.").
26. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979) (listing the "monstrosities" associated with utilitarian ethics and explaining how wealth maximization tames each); Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication 8 HOFSTRA L. REV. 487 (1980) (supplementing utilitarian justifications for efficiency with arguments based on consent).
27. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979) (listing the "monstrosities" associated with utilitarian ethics and explaining how wealth maximization tames each); Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication 8 HOFSTRA L. REV. 487 (1980) (supplementing utilitarian justifications for efficiency with arguments based on consent).
28. See, e.g., RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 363 (1981) ("The fact that much of racial discrimination may be efficient does not mean that it is or should be lawful."); Richard A. Posner, Wealth Maximization Revisited, 2 NOTRE DAME J.L. ETHICS & PUB. POL'Y 85, 100-01 (1985) (observing that even if slavery, torture, and/or lynching were efficient, community norms would justifiably prohibit such practices).
29. See, e.g., RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 363 (1981) ("The fact that much of racial discrimination may be efficient does not mean that it is or should be lawful."); Richard A. Posner, Wealth Maximization Revisited, 2 NOTRE DAME J.L. ETHICS & PUB. POL'Y 85, 100-01 (1985) (observing that even if slavery, torture, and/or lynching were efficient, community norms would justifiably prohibit such practices).
30. See, e.g., Lewis A. Kornhauser, A Guide to the Perplexed Claims of Efficiency in the Law, 8 HOFSTRA L. REV. 591, 599-604 (1980) (arguing that Posner's wealth maximization principle does not save EAL from standard anti-utilitarian attacks); Robin Paul Malloy, Invisible Hand Or Sleight of Hand? Adam Smith, Richard Posner and the Philosophy of Law and Economics, 36 KAN. L. REV. 209 (1988) (reasserting the classical liberal critique that EAL is hostile to natural rights); Jules L. Coleman, The Normative Basis of Economic Analysis: a Critical Review of Richard Posner's "The Economics of Justice", 34 STAN. L. REV. 1105 (1982) (book review) (rejecting the notion that EAL can be grounded on consent).
31. See, e.g., Lewis A. Kornhauser, A Guide to the Perplexed Claims of Efficiency in the Law, 8 HOFSTRA L. REV. 591, 599-604 (1980) (arguing that Posner's wealth maximization principle does not save EAL from standard anti-utilitarian attacks); Robin Paul Malloy, Invisible Hand Or Sleight of Hand? Adam Smith, Richard Posner and the Philosophy of Law and Economics, 36 KAN. L. REV. 209 (1988) (reasserting the classical liberal critique that EAL is hostile to natural rights); Jules L. Coleman, The Normative Basis of Economic Analysis: a Critical Review of Richard Posner's "The Economics of Justice", 34 STAN. L. REV. 1105 (1982) (book review) (rejecting the notion that EAL can be grounded on consent).
32. See, e.g., Lewis A. Kornhauser, A Guide to the Perplexed Claims of Efficiency in the Law, 8 HOFSTRA L. REV. 591, 599-604 (1980) (arguing that Posner's wealth maximization principle does not save EAL from standard anti-utilitarian attacks); Robin Paul Malloy, Invisible Hand Or Sleight of Hand? Adam Smith, Richard Posner and the Philosophy of Law and Economics, 36 KAN. L. REV. 209 (1988) (reasserting the classical liberal critique that EAL is hostile to natural rights); Jules L. Coleman, The Normative Basis of Economic Analysis: a Critical Review of Richard Posner's "The Economics of Justice", 34 STAN. L. REV. 1105 (1982) (book review) (rejecting the notion that EAL can be grounded on consent).
33. RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990) [hereinafter POSNER, JURISPRUDENCE].
34. RICHARD A. POSNER, OVERCOMING LAW (1995) [hereinafter POSNER, OVERCOMING].
35. See infra notes 109-24 and accompanying text.
36. For a working definition of postmodernism see infra notes 23-32 and accompanying text.
37. See infra notes 125-40 and accompanying text.
38. See infra text following note 60.
39. See infra notes 61-73 and accompanying text.
40. See generally LYNNE Z. CHENEY, TELLING THE TRUTH 16 (1995) (defining "postmodern" as the term is used in sociology); RICHARD RULAND & MALCOLM BRADBURY, FROM PURITANISM TO POSTMODERNISM: A HISTORY OF AMERICAN LITERATURE ix-xxi, 386-93 (1991) (distinguishing modern from postmodern literature); David Luban, Legal Modernism, 84 MICH. L. REV. 1686 (1986) (comparing the uses of the term modernism in law with that used in the fine arts).
41. See generally LYNNE Z. CHENEY, TELLING THE TRUTH 16 (1995) (defining "postmodern" as the term is used in sociology); RICHARD RULAND & MALCOLM BRADBURY, FROM PURITANISM TO POSTMODERNISM: A HISTORY OF AMERICAN LITERATURE ix-xxi, 386-93 (1991) (distinguishing modern from postmodern literature); David Luban, Legal Modernism, 84 MICH. L. REV. 1686 (1986) (comparing the uses of the term modernism in law with that used in the fine arts).
42. See generally LYNNE Z. CHENEY, TELLING THE TRUTH 16 (1995) (defining "postmodern" as the term is used in sociology); RICHARD RULAND & MALCOLM BRADBURY, FROM PURITANISM TO POSTMODERNISM: A HISTORY OF AMERICAN LITERATURE ix-xxi, 386-93 (1991) (distinguishing modern from postmodern literature); David Luban, Legal Modernism, 84 MICH. L. REV. 1686 (1986) (comparing the uses of the term modernism in law with that used in the fine arts).
43. The notions of "modern" and "postmodern" developed herein largely conform to those offered in GARY MINDA, POSTMODERN LEGAL MOVEMENTS 2-6 (1995) (distinguishing "modern" from "postmodern" jurisprudence).
44. See id. at 5 (equating "legal modernism" with the proposition that a "lone author could discover right answers for even the most difficult and controversial problems in the law").
45. See Dennis Patterson, Postmodernism/Feminism/Law, 77 CORNELL L. REV. 254, 258 (1992).
46. See generally Richard A. Posner, Blackstone and Bentham, 19 J.L. & ECON. 569, 572-89 (1976) (describing the jurisprudential views and methods of William Blackstone).
47. Id. at 589-97 (describing the jurisprudence views and methods of Jeremy Bentham).
48. See infra notes 33-39 and accompanying text.
49. See infra notes 61-73 and accompanying text.
50. For useful introduction to postmodern thought see generally Stephen Feldman, Diagnosing Power: Postmodernism in Legal Scholarship, 88 Nw. U. L. REV. 1046 (1994); Peter C. Schanck, Understanding Postmodern Thought, 65 S. CAL. L. REV. 2505 (1992).
51. For useful introduction to postmodern thought see generally Stephen Feldman, Diagnosing Power: Postmodernism in Legal Scholarship, 88 Nw. U. L. REV. 1046 (1994); Peter C. Schanck, Understanding Postmodern Thought, 65 S. CAL. L. REV. 2505 (1992).
52. There is some irony in attaching a single "defining characteristic" to an allusive term such as "postmodern." The felt need for precise definitions is a distinctively "modern" affect of the mind. See generally Pierre Schlag, Normative and No Where to Go, 43 STAN. L. REV. 167, 174 (1990) (observing that contemporary intellectuals, including postmoderns, have no language other than modern).
53. The story of combat between the Langdellian formalists and the legal realists has been told many times. See, e.g., NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 9-64 (1995) (characterizing the movement away from formalist thought as slow and hesitant rather than as a "revolt"); WILLIAM TWINING, KARL LLEWELYN AND THE REALIST MOVEMENT (1977); MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM 11-18 (1949) (finding a parallel revolt against claims of objective certainty in several disciplines including but not limited to law).
54. The story of combat between the Langdellian formalists and the legal realists has been told many times. See, e.g., NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 9-64 (1995) (characterizing the movement away from formalist thought as slow and hesitant rather than as a "revolt"); WILLIAM TWINING, KARL LLEWELYN AND THE REALIST MOVEMENT (1977); MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM 11-18 (1949) (finding a parallel revolt against claims of objective certainty in several disciplines including but not limited to law).
55. The story of combat between the Langdellian formalists and the legal realists has been told many times. See, e.g., NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 9-64 (1995) (characterizing the movement away from formalist thought as slow and hesitant rather than as a "revolt"); WILLIAM TWINING, KARL LLEWELYN AND THE REALIST MOVEMENT (1977); MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM 11-18 (1949) (finding a parallel revolt against claims of objective certainty in several disciplines including but not limited to law).
56. See generally Thomas C. Grey, Langdell's Orthodoxy, 45 PITT. L. REV. 1 (1983).
57. See POSNER, JURISPRUDENCE, supra note 16, at 14 (suggesting that Langdell stepped "into the breach" created by the simultaneous disenchantment with the eighteenth century natural law reasoning of Blackstone and the utilitarian moral philosophy of Bentham).
58. See Grey, supra note 34, at 7-10.
59. Id.
60. One hallmark that unites all formalists is that legal reasoning remains independent of the world of fact. Logical reasoning focussed exclusively on legal texts was all that was needed. See POSNER, JURISPRUDENCE, supra note 16, at 10.
61. See id. at 15. See also Grey, supra note 34, at 7-8.
62. See infra note 56 and accompanying text.
63. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935).
64. Id. at 809-12 (analyzing Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.B. 915 (1917)).
65. Id. at 810.
66. See Duxbury, supra note 33, at 93-97.
67. Cohen, supra note 41, at 810.
68. Id.
69. Cohen wrote: "[S]ome of us have seen corporate funds, corporate transactions (just as some of us have seen angelic deeds, countenances, etc.). But this does not give us the right to hypostatize, to "thingify," the corporation, and to assume that it travels about form State to State as mortal men." Id. at 811. He continued: "Yet it is exactly in these terms of transcendental nonsense that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in the New York State." Id. (emphasis added).
70. Cohen wrote: "When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devises for formulating decisions reached on other grounds, the author...is apt to forget...the social ideals by which the law is to be judged." Id. at 812.
71. Id. at 813-14 (analyzing United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922)).
72. Id. at 813.
73. Id.
74. Id. Cohen's final two examples revealed a circularity in the court's concept of private property. In the first, a court protected a trade name because that name had economic value. Id. at 814-17. Of course, the trade name, like all forms of property, had economic value only because the court is willing to protect it. The court's reasoning was circular. In the second example, a series of courts set utility rates based on the "fair value" of a given utility's assets. Id. at 817-18. The value of those assets, in turn, depended on the anticipated profit flows which were a function of the utility rate. The courts, again, were apparently immune to the circularity of their reasoning.
75. Id. at 820 (emphasis deleted).
76. Other Realists offered similar observations. For example, in a series of important and insightful articles Robert Lee Hale demonstrated the circularity of freedom of contract doctrine both in the common law and in the constitutional realm of substantive due process. See generally Robert Lee Hale, Bargaining, Duress and Economic Liberty, 43 COLUM. L. REV. 603 (1943); Robert Lee Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 33 POL. SCI. Q. 470 (1923); Robert Lee Hale, Force and the State: A Comparison of "Political" and "Economic" Compulsion, 35 COLUM. L. REV. 149 (1935). Only empirical inquiry, painfully absent in orthodox thought, could break the circularity of formalist reasoning.
77. Other Realists offered similar observations. For example, in a series of important and insightful articles Robert Lee Hale demonstrated the circularity of freedom of contract doctrine both in the common law and in the constitutional realm of substantive due process. See generally Robert Lee Hale, Bargaining, Duress and Economic Liberty, 43 COLUM. L. REV. 603 (1943); Robert Lee Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 33 POL. SCI. Q. 470 (1923); Robert Lee Hale, Force and the State: A Comparison of "Political" and "Economic" Compulsion, 35 COLUM. L. REV. 149 (1935). Only empirical inquiry, painfully absent in orthodox thought, could break the circularity of formalist reasoning.
78. Other Realists offered similar observations. For example, in a series of important and insightful articles Robert Lee Hale demonstrated the circularity of freedom of contract doctrine both in the common law and in the constitutional realm of substantive due process. See generally Robert Lee Hale, Bargaining, Duress and Economic Liberty, 43 COLUM. L. REV. 603 (1943); Robert Lee Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 33 POL. SCI. Q. 470 (1923); Robert Lee Hale, Force and the State: A Comparison of "Political" and "Economic" Compulsion, 35 COLUM. L. REV. 149 (1935). Only empirical inquiry, painfully absent in orthodox thought, could break the circularity of formalist reasoning.
79. The complete list read: "Holmes, Gray, Pound, Brooks Adams, M. R. Cohen, T. R. Powell, Cook, Oliphant, Moore, Radin, Yntema, Frank, and other leaders." Cohen, supra note 41, at 821 n.82.
80. See MINDA, supra note 24, at 28-33 (identifying two "camps" of realism: radical and progressive); Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1152, 1219-26 (1985) (distinguishing two "strands" of legal realism: one rejecting the notion of objectivity, the other embracing it).
81. See DUXBURY, supra note 33, at 96-97.
82. See, e.g., Karl Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222, 1253 ("[O]nly policy considerations can justify interpreting the relevant body of precedent in one way or another."). See generally John Henry Schegel, American Legal Realism and Empirical Social Science, 28 BUFFALO L. REV. 459 (1979) (discussing the role of empirical science within the works of leading progressive realists).
83. See, e.g., Karl Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222, 1253 ("[O]nly policy considerations can justify interpreting the relevant body of precedent in one way or another."). See generally John Henry Schegel, American Legal Realism and Empirical Social Science, 28 BUFFALO L. REV. 459 (1979) (discussing the role of empirical science within the works of leading progressive realists).
84. The later works of the leading spokesperson from the realist camp, Karl Llewelly, typifies this progressive strand. See MINDA, supra note 24, at 29-31 (suggesting that Llewellyn and other progressive realists drew upon the works of Oliver Wendell Holmes, Roscoe Pound, and Benjamin Cardozo in fashioning an instrumental, or policy oriented view of law); PELLER, supra note 56, at 1241-42 (identifying Llewellyn with the progressive strand). See generally TWINING, supra note 33, at 375-87 (discussing the relationship between progressive legal realism and the sociological jurisprudence of Roscoe Pound).
85. Although legal realism is normally associated with a form of legal positivism, there is no reason that a realists could not have natural law sympathies. This is particularly true if the instrumental ends of the realist had a natural law grounding. See generally POSNER, JURISPRUDENCE, supra note 16, at 10-11.
86. Gary Peller cautions that the two strands of realism are not necessarily associated with particular realists - in "most realist work both strands are evident." Peller, supra note 56, at 1226. Notwithstanding this caution, Peller relies exclusively on the works of Felix Cohen and Robert Lee Hale, and to a lesser extent, John Dawson and Walter Wheeler Cook, in discussing the critical strand. Id. at 1219-40. A similar list of prominent radicals is identified by Minda. See MINDA, supra note 24, at 29.
87. See Cohen supra note 41.
88. Id. at 824.
89. 64 Id. at 835.
90. Id. at 845.
91. Jerome Frank, like Cohen, argued that to predict a given decision (ala Holmes) one needs to inquire into the social and psychological biases of the individual judge. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930) (incorporating the tools of psychoanalysis in understanding law).
92. Cohen, supra note 41, at 846.
93. Id.
94. Id.
95. Id. at 848.
96. Id.
97. Id. at 849.
98. The analysis also reveals certain "red herrings" that should not be chased. Both EAL and postmodernism denounce formalistic appeals to legal autonomy and to conceptualism
99. Judge Posner observes that "most lawyers, judges, and law professors still believe that demonstrably correct rather than merely plausible or reasonable answers to most legal questions, even very difficult and contentious ones, can be found - and it is imperative that they be found." POSNER, OVERCOMING, supra note 17, at 20.
100. "[T]he radical perspective lost out to progressive legal realism as World War II broke out and American embraced more traditional and apolitical ideologies." MINDA, supra note 24, at 29. The radical strand of Realism was identified, perhaps unjustly, with legal nihilism. Peller, supra note 56, at 1222. Nihilism suggests ethical relativism, perhaps intolerable in world at war against Nzi Germany and Imperial Japan.
101. Progressive realism remains a potent force in contemporary thought. Gary Minda observes: "Most law teachers today regard themeselves as legal realists. This is because most legal academics associate legal realism with the work of progressive realism." MINDA, supra note 24, at 32.
102. See id. at 33-43 (discussing the central features of legal process jurisprudence); Gary Peller, Neutral Principles in the 1950's, 21 U. MICH. J.L. REFORM 4 (1988) (same).
103. Examples of natural methodology include attempts to resurrect libertarianism, see, e.g., RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1988) (arguing that property rights are fundamental), and John Rawls' social contract methodology, see generally JOHN RAWLS, A THEORY OF JUSTICE (1971).
104. Examples of natural methodology include attempts to resurrect libertarianism, see, e.g., RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1988) (arguing that property rights are fundamental), and John Rawls' social contract methodology, see generally JOHN RAWLS, A THEORY OF JUSTICE (1971).
105. See Robin Paul Malloy, Toward a New Discourse of Law & Econonomics, 42 SYRACUSE L. REV. 27, 41 (1991) (noting that EAL substitutes "a new discourse of economic analysis for the discredited discourse of law as an autonomous discipline"); Pierre Schlag, The Politics of Form and the Domestication of Deconstruction, 11 CARDOZO L. REV. 1631, 1653-57 (1990).
106. See Robin Paul Malloy, Toward a New Discourse of Law & Econonomics, 42 SYRACUSE L. REV. 27, 41 (1991) (noting that EAL substitutes "a new discourse of economic analysis for the discredited discourse of law as an autonomous discipline"); Pierre Schlag, The Politics of Form and the Domestication of Deconstruction, 11 CARDOZO L. REV. 1631, 1653-57 (1990).
107. See generally RONALD DWORKIN, LAW'S EMPIRE (1986).
108. See e.g., Michael Corrado, The Place of Formalism in Legal Theory, 70 N.C.L. REV. 1545 (1992) Frederick Schauer, Formalism, 97 YALE L.J. 509(1988); Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
109. See e.g., Michael Corrado, The Place of Formalism in Legal Theory, 70 N.C.L. REV. 1545 (1992) Frederick Schauer, Formalism, 97 YALE L.J. 509(1988); Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
110. See e.g., Michael Corrado, The Place of Formalism in Legal Theory, 70 N.C.L. REV. 1545 (1992) Frederick Schauer, Formalism, 97 YALE L.J. 509(1988); Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
111. Professor Minda observes that the radical "strand of legal realism was largely forgotten as modern scholars during the 1950s developed new conceptual theories of law. It wasn't until the late 1970s that radical realist thought resurfaced." MINDA, supra note 24, at 31.
112. Since our ultimate aim is to explore the implications of a pragmatic EAL, a datailed discussion of radical postmodernism is beyond the scope of analysis. The brief discussion of radical branch that follows is designed to put the pragmatic branch in context.
113. For a useful overview of CLS see generally Mark Tushnet, Critical Legal Studies: An Introduction to Its Origins and Underpinnings, 36 J. LEGAL EDUC. 505 (1986).
114. See generally, Linda J. Lacey, Introducing Feminist Jurisprudence, 25 TULSA L.J. 775 (1990).
115. See generally Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993).
116. For discussions of deconstructive methods generally see J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); and Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985). See also Kenneth L. Schneyer, The Culture of Risk: Deconstructing Mutual Mistake, 34 AM. BUS. L.J. 429 (1997) (employing deconstructive methods).
117. For discussions of deconstructive methods generally see J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); and Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985). See also Kenneth L. Schneyer, The Culture of Risk: Deconstructing Mutual Mistake, 34 AM. BUS. L.J. 429 (1997) (employing deconstructive methods).
118. For discussions of deconstructive methods generally see J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); and Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985). See also Kenneth L. Schneyer, The Culture of Risk: Deconstructing Mutual Mistake, 34 AM. BUS. L.J. 429 (1997) (employing deconstructive methods).
119. MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 3-5 (1987).
120. Kelman observes that this "standard four-part critical method has been used again and again, whether consciously of not." Id. at 3.
121. Id. (using the term "critic" as shorthand for a critical legal studies scholar).
122. See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1710-11 (1976) (illustrating this same point).
123. KELMAN, supra note 88, at 3.
124. Id.
125. Id.
126. Id.
127. Id. at 4.
128. Id.
129. Id.
130. Consider, for example, the CLS view of unconscionability. A judge has the authority to refuse to enforce an otherwise clear and unambiguous contract if that judge feels that the contract was "unconscionable" at the time it was made. A judge who prefers rules, subjective notions of value, and free will is likely to find little or no need for unconscionability review. The parties' agreement establishes the fairness of the exchange and any judicial interference will introduce unjustified uncertainty into the contractual process. On the other hand, if the judge views the agreement itself as a predetermined outcome given the disparities in bargaining power, then unconscionability review emerges as a legitimate means of assuring a modicum of objective equality in the division of the exchange surplus. The CLS point, of course, is not to take sides on the unconscionability issue, but to demonstrate that either approach to unconscionability is supported in the law. The approach that is adopted in a given case depends, not on the legal authority cited, but on the political and social ideology of the given judge. See Kennedy, supra note 91.
131. See Steven D. Smith, The Pursuit of Pragmatism, 100 YALE L.J. 409-411 (1995) (recounting the recent growth of interest in legal pragmatism). Professor Smith writes: "[I]t seems only a slight exaggeration to suggest that a movement [legal pragmatism] which only five years ago included almost no one today appears to embrace virtually everyone." Id. at 411. On the revival of interest in pragmatic philosophy, see generally RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY (1989); CORNELL WEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM (1989).
132. See Steven D. Smith, The Pursuit of Pragmatism, 100 YALE L.J. 409-411 (1995) (recounting the recent growth of interest in legal pragmatism). Professor Smith writes: "[I]t seems only a slight exaggeration to suggest that a movement [legal pragmatism] which only five years ago included almost no one today appears to embrace virtually everyone." Id. at 411. On the revival of interest in pragmatic philosophy, see generally RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY (1989); CORNELL WEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM (1989).
133. See Steven D. Smith, The Pursuit of Pragmatism, 100 YALE L.J. 409-411 (1995) (recounting the recent growth of interest in legal pragmatism). Professor Smith writes: "[I]t seems only a slight exaggeration to suggest that a movement [legal pragmatism] which only five years ago included almost no one today appears to embrace virtually everyone." Id. at 411. On the revival of interest in pragmatic philosophy, see generally RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY (1989); CORNELL WEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM (1989).
134. See generally Symposium, The Renaissance of Pragmatism in American Legal Thought, 63 S.CAL. L. REV. 1569 (1990) (offering several distinct yet essentially similar conceptions of legal pragmatism).
135. Legal pragmatism has close historical ties to the philosophical pragmatism of Charles Sanders Peirce, William James, and John Dewey. As such, legal pragmatism, like radical postmodernism, has roots in the realist revolt against formalism. See generally WHITE, supra note 33, at 11-21 (discussing the relationship between legal realism and philosophical pragmatism).
136. See MINDA, supra note 24, at 230 (labelling legal pragmatism a "close cousin" of its more radical postmodernism relatives). See generally Margaret Jane Radin, The Pragmatist and the Feminist, 63 S.CAL. L. REV. 1699 (1990) (exploring the parallels between legal pragmatism and feminist jurisprudence).
137. See MINDA, supra note 24, at 229-30. Pragmatic postmodernism differs from radical postmodernism in that the former "is less concerned with exposing the contradictions of modern conceptual and normative thought than revealing instrumental, empirical, and epidemiological solutions for the problem at hand." Id. at 229.
138. See WEST, supra note 100, at 5 (characterizing pragmatism as "a future oriented instrumentalism that tries to deploy thought as a weapon to enable more effective action").
139. See generally Richard Rorty, CONSEQUENCES OF PRAGMATISM (1983) (identifying a distinctively pragmatic approach to policy questions); Michael L. Siegel, Pragmatism Applied, 22 HOFSTRA L. REV. 567 (1994) (discussing pragmatic attitudes and methods). But see Stanley Fish, Almost Pragmatism: Richard Posner's Jurisprudence, 57 U. CHI. L. REV. 1447, 1464-68 (1990) (book review) (arguing that neither Posner's nor Rorty's legal pragmatism, properly conceived, can offer any guidance on policy questions).
140. See generally Richard Rorty, CONSEQUENCES OF PRAGMATISM (1983) (identifying a distinctively pragmatic approach to policy questions); Michael L. Siegel, Pragmatism Applied, 22 HOFSTRA L. REV. 567 (1994) (discussing pragmatic attitudes and methods). But see Stanley Fish, Almost Pragmatism: Richard Posner's Jurisprudence, 57 U. CHI. L. REV. 1447, 1464-68 (1990) (book review) (arguing that neither Posner's nor Rorty's legal pragmatism, properly conceived, can offer any guidance on policy questions).
141. See generally Richard Rorty, CONSEQUENCES OF PRAGMATISM (1983) (identifying a distinctively pragmatic approach to policy questions); Michael L. Siegel, Pragmatism Applied, 22 HOFSTRA L. REV. 567 (1994) (discussing pragmatic attitudes and methods). But see Stanley Fish, Almost Pragmatism: Richard Posner's Jurisprudence, 57 U. CHI. L. REV. 1447, 1464-68 (1990) (book review) (arguing that neither Posner's nor Rorty's legal pragmatism, properly conceived, can offer any guidance on policy questions).
142. See Smith, supra note 100, 444-49.
143. See Posner writes: "Since becoming a judge in 1981, I have, naturally, become fascinated by the issue of objectivity in adjudication." POSNER, JURISPRUDENCE, supra note 16, at vii.
144. In his introduction to Problems of Jurisprudence, Posner writes: "[T]he questions that give structure to the book are whether, in what sense, and to what extent the law is a source of objective and determinate, rather than merely personal or political, answers to contentious questions." Id. at 31.
145. Id. at 7.
146. In Parts II and IV of The Problems of Jurisprudence, Posner considers and ultimately rejects law's claim to ontological objectivity. His search for ontological norms takes him from corrective justice and wealth maximization, to the feminine ethic of care, radical communitarianism, egalitarianism, natural rights, and civic republicanism. He concludes that none of these approaches can salvage law's claim to objectivity. He writes: "The first two of these approaches, at least, have significant roles to play in channeling legal inquiry but neither one (nor both together) can close the open area of judicial decision making all the way. The other approaches are vulnerable to disabling criticisms." Id. at 31.
147. Id.
148. In Parts I and III of the Problems of Jurisprudence, Posner addresses and dismisses grand schemes to render law objective through legal reasoning techniques applicable to the common law or through principles of statutory or constitutional interpretation. He writes: "[The] term "interpretation" is so elastic... that it often is a fig leaf covering judicial discretion rather than a guide to decision making.... We might do better to discard the term and concentrate instead on comparing the practical consequences of proposed applications of a legal text." Id. at 30-31.
149. Id. at 7.
150. In contrast to the CLS view, see supra notes 89-98 and accompanying text, Posner argues that there are "easy cases" in the law. He writes: "Not all legal questions are difficult, of course; and one of the points that I shall be emphasizing is that there really are easy legal questions - many of them." POSNER, JURISPRUDENCE, supra note 16, at 30-31. He notes that adherence to principles of legal interpretation render "most" legal texts "straightforward," and "readily decipherable." Id. at 30.
151. Posner describes practical reasoning as "a grab bag that includes anecdote, introspection, imagination, common sense, emphaty, imputation of motives, speaker's authority, methaphor, analogy, precedent, custom, memory, experience, intuition and induction." Id. at 73 (emphasis deleted).
152. Posner sees reasonableness as the "judicial lodestar." He writes: "I can think of no better approach than for judges to conceive of their task, in every case, as that of striving to reach the most reasonable result." Id. at 130. He continues: "Bland as this recommendation may seem, it differs from both the orthodox legal view of the judge's task and the various natural law approaches by substituting the humble, fact-bound, policy soaked, instrumental concept of "reasonableness" for both legal and moral rightness." Id. (footnote omitted).
153. Judge Posner writes: "[O]nly if we are content to define "objective" in ... the "conversational" sense...will we be able to locate, with respect tc difficult legal questions a middle ground between the [modern] natural lawyer's view and the [postmodern] legal nihilist's view." Id. at 7.
154. Id. at 114 (citing the seminal statements of Charles Sanders Peirce).
155. Posner's summarizes his version of pragmatism in the opening pages of Ovencoming Law. Supra note 17, at 4-15.
156. Id. at 4-5.
157. See POSNER, JURISPRUDENCE, supra note 16, at 259-60 (discussing legal stability as one among many practical concerns).
158. See POSNER, OVERCOMING, supra note 17, at 5-7.
159. See id. at 5-6.
160. POSNER, JURISPRUDENCE, supra note 16, at 31.
161. POSNER, OVERCOMING, supra note 17, at 15.
162. Id. at 16.
163. The reference here is to Ricardo's Principles of Political Economy and Taxation, first published in 1817. For useful introductions to Ricardo's thought and enduring influence, see generally MARK BLAUG, RICARDIAN ECONOMICS (1958) and EKELUND AND HEBERT, supra note 149, at 124-44.
164. See GALBRAITH, supra note 146, at 81.
165. See generally MILTON FRIEDMAN, The Methodology of Positive Economics, in ESSAYS IN POSITIVE ECONOMICS 3, 15 (1953) (admitting that the central assumptions of mainstream economics are not falsifiable).
166. See Frank H. Knight, Anthropology and Economics, 49 J. POL. ECON. 247, 253-54 (1941).
167. See id.
168. See id.
169. See GALBRAITH, supra note 146, at 103-108. The seminal works were William Stanley Jevons' Theory of Political Economy (1871), Alfred Marshall's Principles of Economics (1890), and Leon Walras's Elements of Pure Economics (1874). Jevons is typically cited as the father marginal utility theory. See generally EKELUND & HEBERT, supra note 149, at 309-26. Marshall's name is linked to partial equilibrium analysis. See generally id. at 328-67 and sources cited therein. Walras developed general equilibrium analysis. See generally id. at 368-93.
170. See GALBRAITH, supra note 146, at 103-108. The seminal works were William Stanley Jevons' Theory of Political Economy (1871), Alfred Marshall's Principles of Economics (1890), and Leon Walras's Elements of Pure Economics (1874). Jevons is typically cited as the father marginal utility theory. See generally EKELUND & HEBERT, supra note 149, at 309-26. Marshall's name is linked to partial equilibrium analysis. See generally id. at 328-67 and sources cited therein. Walras developed general equilibrium analysis. See generally id. at 368-93.
171. See GALBRAITH, supra note 146, at 103-108. The seminal works were William Stanley Jevons' Theory of Political Economy (1871), Alfred Marshall's Principles of Economics (1890), and Leon Walras's Elements of Pure Economics (1874). Jevons is typically cited as the father marginal utility theory. See generally EKELUND & HEBERT, supra note 149, at 309-26. Marshall's name is linked to partial equilibrium analysis. See generally id. at 328-67 and sources cited therein. Walras developed general equilibrium analysis. See generally id. at 368-93.
172. Note that neoclassical economics has nothing to say with regard to objective value; it's sole concern is with relative values, revealed in the preferences expressed by individuals.
173. See generally JAMES M. HENDERSEN & RICHARD E. QUANDT, MICROECONOMIC THEORY: A MATHEMATICAL APPROACH 230-31 (3d ed. 1985) (setting forth the entirety of general equilibrium theory in two short paragraphs).
174. A comparison of the first edition of Alfred Marshall's textbook published in 1890 with any contemporary text on microeconomic theory reveals little or no change to the basic model. This would of course be true since the model is merely a deduction from a priori assumptions that have not changed.
175. See, e.g., Emily Hoffnar & Michael Greene, Gender Discrimination in the Public and Private Sectors, 25 J. SOCIO-ECON. 105 (1996); Karl E. Reichardt & David L. Schroeder, Salaries 1995, 77 MGMT. ACCT. 20 (1996).
176. See, e.g., Emily Hoffnar & Michael Greene, Gender Discrimination in the Public and Private Sectors, 25 J. SOCIO-ECON. 105 (1996); Karl E. Reichardt & David L. Schroeder, Salaries 1995, 77 MGMT. ACCT. 20 (1996).
177. The neoclassical economist would likely suggest that the empirical model
178. Virtually any behavior can be squared with utility analysis by adjusting one assumptions about tastes after viewing behavior. See Cotter, supra note 141, at 2118. For example, if the mainstream economist observes ostensibly altruistic behavior, she can maintain the orthodox assumption that people are selfish and simply argue that this selfish person gets utility by sacrificing himself or herself for others. See id. (citing examples of just such analysis). Similarly one could argue that the prejudiced person is rationally maximizing his or her utility becomes he or she enjoys discriminating.
179. Perhaps the neoclassicist could model prejudice with reference to information asymmetries. The argument might be that it is costly to distinguish between members of a group; hence it becomes cost effective to discriminate. The question is does this formulation really capture what is going on? And what advantages are there for stating prejudice in price theoretic terms when a more intuitive vocabulary is available? See generally Jeffrey L. Harrison, Egoism, Altruism, and Market Illusions: The Limits of Law and Economics, 33 UCLA L. REV. 1309, 1314 n.23 (1986) (discussing the relevance of realistic behavioral assumptions).
180. See generally Paul A. Samuelson, Consumption Theory in Terms of Revealed Preferences, 15 ECONOMICA 243 (1948) (developing the theory of revealed preferences); Cass R. Sustein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 794 n.48 (1994) (pointing out that the theory of revealed preferences says nothing about the underlying value of given behaviors nor the values of the individual actors).
181. See generally Paul A. Samuelson, Consumption Theory in Terms of Revealed Preferences, 15 ECONOMICA 243 (1948) (developing the theory of revealed preferences); Cass R. Sustein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 794 n.48 (1994) (pointing out that the theory of revealed preferences says nothing about the underlying value of given behaviors nor the values of the individual actors).
182. Compare this observation with Cohen's critique of Langdellian formalism. See supra notes 49-53 and accompanying text.
183. See Amartya K. Sen, Rational Fools, in PHILOSOPHY AND ECONOMIC THEORY 87-91 (Frank Hahn & Martin Hollis eds., 1979) (discussing the tautological nature of much of mainstrearn economic analysis).