Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory

Law and History Review

Volumn 15, Issue 2, 1997, Pages 275-322

  Hackney, James R ^a  

^a NORTHEASTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85011512436     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/827653     Document Type: Article

References (180)

1. Morton J. Horwitz, “Law and Economics: Science or Politics?,” Hofstra Law Review 8 (1980): 905 (hereinafter “Science or Politics?”).
2. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press. 1993), 269-72; G. E. White, Tort Law in America (New York: Oxford University Press, 1985), 2113; Mark Tushnet, “Idols of the Right: The ‘Law-and-Economics’ Movement,” Dissent 40 (1993): 475.
3. Kevin Phillips, The Politics of Rich and Poor (New York: Random House, 1990; New York: Harper Perennial, 1991); Horwitz, Transformation, 270; Horwitz, “Science or Politics?” 905; Tushnet, “Idols,” 476-77; Mark Kelman, A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987), 151-85 (chapter entitled “Legal Economists and Conservative Preferences”).
4. Horwitz, “Science or Politics?” 905 (arguing that “only the prestige of the sciences could have brought law-and-economics such prominence during the past two decades”); Tushnet, “Idols,” 477 (arguing that the emergence of the law-and-economics movement marked the displacement of “legal logic” by the formalism of “scientific and technical expertise”).
5. In focusing on tort law, this article further explores the “neoconceptualism” that G. Edward White discussed in Tort Law in America, 211-43. The focus on a single legal policy area parallels Herbert Hovenkamp's effort to chronicle developments in economic thinking on business enterprises. See Hovenkamp, Enterprise and American Law, 1836-1937 (Cambridge: Harvard University Press, 1991).
6. This study is an attempt at, as stated by Carl Schorske, paying attention to the “internal structure” of thought and not merely “skimming the ideological cream off the intellectual milk, reducing complex works of art and intellect to mere illustrations of historical tendencies or movements.” See Schorske, “1987 Charles Homer Haskins Lectures of the American Council of Learned Societies,” in Life of Learning, ed. Douglas Greenberg and Stanley N. Katz (New York: Oxford University Press, 1994), 53, 64.
7. White, Tort Law in America, 211-43.
8. For a comprehensive general account of the rise of the law and neoclassical economics movement, see Neil Duxbury, Patterns of American Jurisprudence (New York: Oxford University Press, 1995), 301-419. However, Duxbury's study does not place the rise of law and neoclassical economics in the context of the intellectual and political shifts set forth in this study and is not focused on the science/politics debate. In addition, the general nature of his study does not lend itself to textual attention to the “internal structure” of law and neoclassical economics that Schorske suggests. See note 6 above.
9. See, e.g., Kelman, Critical Legal Studies, 114-85 (summarizing theoretical critiques of law and neoclassical economics by scholars in critical legal studies).
10. Of course, the choice of a particular concept of science may be political, which leads to the conclusion that an entire enterprise is political even given its fidelity to a certain notion of science. One's stance on this issue may differ from context to context, and I leave it to the reader to determine if this view of science is applicable to the historical context discussed here.
11. Hovenkamp briefly, but acutely, sketches out such a displacement in the American conception of the corporate firm. However, it is not a central theme in his analysis. See Hovenkamp, Enterprise and American Law, 305-7.
12. Hereinafter LSE. Robbins, Pigou, and Hayek all held professorships at the LSE in the 1930s. Ronald Coase was a student in the economics department at the LSE during this period, and Frank Knight spent some time there as a visiting professor. See Lionel Robbins, Autobiography of an Economist (London: Macmillan Press, 1971), 123-44, 219 (describing economic debates and economists at the LSE in the 1930s).
13. For an extended discussion of pragmatic instrumentalism, see James Hackney, “The Intellectual Origins of American Strict Products Liability: A Case Study in American Pragmatic Instrumentalism,” American Journal of Legal History 39 (1995): 443-509. The pragmatist tenets essential to the conception of Section 402A (see note 148 below for description of Section 402A) were antiformalism, anticonceptualism, historicism, and contextualism. The tenets were articulated by such figures as Charles Sanders Peirce, Nicholas St. John Green, Oliver Wendell Holmes, and John Dewey (Hereinafter LSE., 447-62). The insights of institutional economics included a focus on society as a whole (as opposed to individuals), emphasis on large forces (institutions), descriptive (inductive) analysis, and humanistic concern for those at the economic margins of society. Concerns related to the economic underpinnings of Section 402A were expressed by institutionalists including Thorstein Veblen, John R. Commons, Wesley Mitchell, Henry Seager, and Crystal Eastman (Hereinafter LSE., 462-78). Legal realists urged anticonceptualism, concern for connecting law with social reality, and use of social science as a tool for examining legal rules. Those associated with the legal realist movement who took part in the construction of strict products liability law included Harold Laski, Leon Green, Karl Llewellyn, and Benjamin Cardozo (Hereinafter LSE., 478-89).
14. See Hackney, “Pragmatic Instrumentalism,” 447.
15. “Pragmatic Instrumentalism,”., 468-478.
16. “Analytic philosophy” is a term ill-suited to precise definition. It is better defined by the ways of doing philosophy followed by those associated with the analytic turn. Barry Gross has proposed a useful division of analytic philosophy into five historical stages. Gross marks the first stage of development with the early realism and analysis of G. E. Moore and Bertrand Russell. Their concern was with the method of forming precise questions and clear answers. The second stage is ushered in by Russell's later work (1914-1919) and the early work of Ludwig Wittgenstein. Gross refers to this stage as adopting the position of logical atomism “to construct a language whose syntax mirrored the relations of the basic entities of which the world was made.” The third stage, logical positivism, marked an attempt to dispense with any form of metaphysics and the “desire to construct a formal language adequate for science.” Performance of analysis in “natural languages” (ordinary language) marks the fourth stage and is an implicit rejection of stages two and three. The final stage is concerned with the problem of untangling the “diversity of language.” See Barry Gross, Analytic Philosophy: An Historical Introduction, (New York: Pegasus, 1970), 13-14. This article focuses on developments in stages two and three, with particular emphasis on the importation of logical positivism onto American soil.
17. Nicholas Rescher lists the major tenets of analytic philosophy as follows: the enchantments of language, linguistic analysis as a philosophical anodyne, reduction to scientific residues, prioritizing of science, and the end to philosophical theorizing. See Rescher, American Philosophy Today and Other Philosophical Studies (Maryland: Rowan & Littlefield, 1994), 34-35.
18. Joergen Joergensen, “The Development of Logical Empiricism,” in Foundations of the Unity of Science, vol. 2, ed. Otto Neurath, Rudolf Carnap, and Charles Morris (1939; reprint Chicago: University of Chicago Press, 1970), 845.
19. Tom Sorell, Scientism: Philosophy and the Infatuation with Science (London: Routledge, 1991), 4 (discussing the role of Vienna Circle members in laying the foundation for scientism).
20. A. J. Ayer, Language, Truth & Logic (1936; reprint New York: Dover Publications, 1952); hereinafter LTL.
21. Hao Wang, Beyond Analytic Philosophy (Cambridge: MIT Press, 1986), 103.
22. LTL, 31 (preface to first edition).
23. LTL., 31.
24. This illustration is from H. O. Mounce, Wittgenstein's Tractatus: An Introduction (Chicago: University of Chicago Press, 1981), 63.
25. LTL, 57-58.
26. LTL., 75.
27. LTL., 79-80.
28. LTL…, 107-8. This does not mean that for Ayer there is no place for intellectual, even scientific, investigation regarding ethics. Such an investigation would not constitute an “ethical science” but an inquiry into the “moral habits of a given person or group of people, and what causes them to have precisely those habits and feelings” (112). In LTL it is proposed that this inquiry takes place in the disciplines of psychology and sociology(l 12). For an extended discussion of this positivist method of ethical investigation, see Moritz Schlick, “What Is the Aim of Ethics?” in Logical Positivism, ed. A. J. Ayer, trans. David Rynin (New York: Free Press, 1959), 247-63.
29. Wang, Beyond Analytic Philosophy, 102.
30. Cornel West, The American Evasion of Philosophy: A Genealogy of Pragmatism (Chicago: University of Chicago Press, 1989), 183; Joergensen, “Logical Empiricism,” 886-94; Giovanna Borradori, The American Philosopher: Conversations with Quine, Davidson, Putnam, Nozick, Danto, Rorty, Cavell, Maclntyre and Kuhn, trans. Rosanna Crocitto (Wisconsin: University of Wisconsin Press, 1994), 5.
31. West, American Evasion, 183.
32. Borradori, American Philosopher, 4.
33. Car] Schorske, Fin-de-Siecle Vienna: Politics and Culture (1961; reprint, New York: Vintage Books, 1981), xx.
34. Fin-de-Siecle Vienna: Politics and Culture., xxv. (“[T|he political and intellectual life of post-war America suggested the crisis of a liberal polity as a unifying context for simultaneous transformation in the separate branches of culture”)
35. See Alan Janik and Stephen Toulmin, Wittgenstein's Vienna (New York: Simon and Schuster, 1973), 242-43 (noting cultural malaise in fin-de-siecle Vienna).
36. Schorske, Fin-de-Siecle, xxiii.
37. Fin-de-Siecle., xxiii.
38. Stephen Kresge and Leif Wenar identify Hayek with the general “intellectual and cultural eruptions from Vienna and Central Europe to which the rest of the world has been forced to respond.” See F. A. Hayek, Hayek on Hayek: An Autobiographical Dialogue, ed. Stephen Kresge and Leif Wenar (Chicago: University of Chicago Press, 1994), 1. Hayek recognized that the intellectual milieu of Austria in the 1920s and 1930s was “almost entirely the influence of Ernst Mach,” the intellectual forebear of logical positivism and the Vienna Circle, and acknowledged that his “introduction to… philosophy-scientific method… was through Machian philosophy” (Fin-de-Siecle., 49). While Hayek never joined the Vienna Circle, he was exposed to its ideas (Fin-de-Siecle., 50). Ultimately, he would “emancipate” himself from positivism and declare it to be “misleading in the social sciences” (Fin-de-Siecle., 50).
39. Hayek on Hayek: An Autobiographical Dialogue, ed. Stephen Kresge and Leif Wenar., xlv (preface to 1944 ed.).
40. Hayek on Hayek: An Autobiographical Dialogue, ed. Stephen Kresge and Leif Wenar…, xxviii (preface to 1956 ed.).
41. Hayek, Road to Serfdom, xxxiv (preface to 1956 ed.).
42. Road to Serfdom., 4.
43. Road to Serfdom…, 66 (emphasis added). The importance of preference formation to neoclassical economics theory is discussed in Section II below.
44. Road to Serfdom…., 41 (emphasis added).
45. Road to Serfdom…., 41-42.
46. Road to Serfdom……, 43 (emphasis added).
47. An in-depth discussion regarding social costs and neoclassical economics is presented in Section II below. The neoclassical economics focus on social costs preceded Serfdom and is found in the work of A. C. Pigou and Frank Knight, which is discussed in Section II. Suffice it to say that Hayek's discussion of social costs parallels standard neoclassical analysis (Road to Serfdom……., 435).
48. An in-depth discussion regarding social costs and neoclassical economics is presented in Section II below., 45.
49. Serfdom's reception on the American intellectual and political scene reflected a general retreat from progressive reform due to the fear, even of those on the left, that increased government control of the economy would lead to totalitarianism. See Theodore Rosenof, “Freedom, Planning and Totalitarianism: The Reception of F. A. Hayek's The Road to Serfdom,” in Modern Economic Classics-Evaluations Through Time, ed. Bernard S. Katz and Ronald E. Robbins (New York: Garland, 1988), 277. Rosenof makes a compelling argument that progressive positions formulated in the 1930s depression era were abandoned by the left after World War II, which led to the “compromise choice” of “Keynesian-welfare state” policies (290-91). This “compromise choice” reflects the narrowing of the political spectrum, with regard to left-policy prescriptions in particular, in postwar America.
50. Schorske, Fin-de-Siecle, xx (emphasis added). For a discussion of institutional economics and its intellectual milieu, see Hackney, “Pragmatic Instrumentalism,” 462-78.
51. Horwitz, “Science or Politics?” 905.
52. Significance, 1-2, 16 (emphasis added). The same formulation was integral to Knight's definition of economic science. See Section II. C. below.
53. Significance, 4.
54. Significance., 11.
55. Significance., 16-17 (emphasis in original).
56. Significance…, 75-78 (emphases added). The idea of preference ordering (indifference curve analysis) is a foundational analytical tool for contemporary neoclassical analysis. For a discussion of how the emphasis on “individual preferences” as opposed to “levels of welfare” fits with the logical positivist view of science, see note 60 above.
57. Significance…., 76.
58. Significance, 137 (emphasis added).
59. Significance., 138.
60. A. C. Pigou, The Economics of Welfare, 4th ed. (1920, London: Macmillan, 1962). See Spiegel, Growth of Economic Thought, 512-1 A, 806 (recognizing Economics of “Welfare as Pigou's most important text and noting that Pigou found instances where private gain did not benefit the general welfare and used the point to create a “full-fledged system” arguing for welfare state policies); Seligman, Main Currents, 477-96 (praising Economics of Welfare as an “extraordinary book,” which gave economists new areas for investigation); Screpanti and Zamagni, Economic Thought, 183-85 (situating Pigou as central to formal economic thought and arguing that his “most relevant contribution” was the distinction between private and social cost articulated in Economics of Welfare); Robert Lekachman, A History of Economic Ideas (New York: Harper & Row, 1959), 386 (stating that “[t]he major work in welfare economics was Pigou's Economics of Welfare”); Whittaker, Streams of Economic Thought, 308-10 (identifying Pigou as a principal figure in welfare economics and noting the centrality of Economics of Welfare to his work); Roll, History of Economic Thought, 398, 476 (recognizing Pigou as a founder of welfare economics and labeling him [along with his mentor Alfred Marshall] one of the “chief twentieth century representatives” of the “social reform tradition in English economic thought”).
61. Pigou, Economics of Welfare, 4-5 (emphasis added).
62. Economics of Welfare., 5 (emphasis added).
63. Economics of Welfare., 6 (emphasis added).
64. Economics of Welfare…, 6-7 (emphasis added).
65. Economics of Welfare…., 7 (emphasis added).
66. Economics of Welfare…., 11.
67. A. C. Pigou, Socialism Versus Capitalism (1937; reprint, London: Macmillan, 1939). In a recent exchange regarding Ronald Coase's dispute with Pigou's analysis in Economics of Welfare, both A. W. Brian Simpson and Coase recognize Socialism and Capitalism as a central text in Pigou's oeuvre. See Simpson, “Coase v. Pigou Reexamined,” Journal of Legal Studies 25 (1996): 53, 68-70; Coase, “Law and Economics and A. W. Brian Simpson,” Economics of Welfare…… 103, 113-16.
68. Pigou, Socialism, 21 (emphasis added).
69. Socialism., 13-14, 17.
70. Pigou, Economics of Welfare, 134-35.
71. Economics of Welfare., 135.
72. Economics of Welfare., 172.
73. Economics of Welfare…., 183.
74. Economics of Welfare…., 192.
75. Pigou, Socialism, 138-39.
76. Spiegel, The Growth of Economic Thought, 578. For a general discussion on the downfall of Pigouvian economics, see Nahid Aslanbeigui, “On the Demise of Pigouvian Economics,” Southern Economic Journal 56 (1990): 616.
77. Ross, American Social Science, 420.
78. Seligman, Main Currents, 646.
79. Frank Knight, Risk, Uncertainty and Profit, (1921; reprint, New York: Augustus M Kelley, 1964); hereinafter Risk. For the importance of Risk, see Spiegel, Growth of Economic Thought, 642 (labeling Risk an important theoretical text in neoclassical theory and identifying Knight as “an intellectual force whose impact was felt by several generations of economists”); Ross, American Social Science, 420-27 (acknowledging Knight as “one of the most powerful theorists among neoclassical economists,” recognizing his position as “founder of the libertarian Chicago school of economics,” and calling Risk his “major and still classic theoretical work”); Seligman, Main Currents, 646-65 (arguing that Risk established Knight as “one of the more important economists on the American scene”); Roll, History of Economic Thought, 439 (recognizing Risk as the “best exposition of the theory of choice as it emerged at last from the successive refinements of a generation of marginalists”).
80. Risk, 3 (emphasis added). This can be contrasted with Ayer's view that analytical methods help in understanding complex arguments. See Section I. B. above.
81. Risk., 5-6.
82. Risk., 6.
83. Risk…, 7.
84. Risk…., 7, n. 1.
85. Frank Knight, “What Is Truth in Economics?” in On the History and Method of Economics (Chicago: University of Chicago Press, 1956), 151, 155.
86. “What Is Truth in Economics?”., 164 (emphasis added).
87. “What Is Truth in Economics?”., (emphasis added).
88. “What Is Truth in Economics?”., 153.
89. “What Is Truth in Economics?”…, 169-70 (emphasis added).
90. Frank Knight, “The Role of Principles in Economics and Politics,” American Economic Review 41 (1951): 1-29.
91. “The Role of Principles in Economics and Politics,”., 1,5.
92. “The Role of Principles in Economics and Politics,”., 12.
93. “The Role of Principles in Economics and Politics,”…, 7.
94. “The Role of Principles in Economics and Politics,”…., 12 (emphasis added).
95. “The Role of Principles in Economics and Politics,”…., 3.
96. “The Role of Principles in Economics and Politics,”……, 28.
97. “The Role of Principles in Economics and Politics,”……., 20 (emphasis added).
98. Frank Knight, “Laissez-Faire: Pro and Con,” Journal of Political Economy 75 (1967): 782, 788, n. 5.
99. Ronald Coase, “The Problem of Social Cost,” Journal of Law and Economics 3 (1960): 1-44 (hereinafter “Social Cost”).
100. Frank Knight, “Some Fallacies in the Interpretation of Social Cost,” Quarterly Journal of Economics 38 (1924): 582 (hereinafter “Fallacies”).
101. “Some Fallacies in the Interpretation of Social Cost,”., 583.
102. “Some Fallacies in the Interpretation of Social Cost,”., 583-84 (emphasis in original).
103. “Some Fallacies in the Interpretation of Social Cost,”…, 586.
104. “Some Fallacies in the Interpretation of Social Cost,”…., 586 (emphasis added).
105. “Some Fallacies in the Interpretation of Social Cost,”…., 587.
106. Risk, 370 (emphasis added).
107. Risk., viii-ix (preface to first edition; emphasis added).
108. Risk., xxx (preface to 1933 reissue).
109. On the methodological structure of “Social Cost,” see Seidenfeld, Microeconomics Predicates, 91.
110. For a discussion regarding Coase's criticism of Pigou's analysis in Economics of Welfare, see Simpson, “Coase v. Pigou Reexamined”; Coase, “Law and Economics and A. W. Brian Simpson.”
111. Coase et al., contributors, “The Fire of Truth: A Remembrance of Law and Economics at Chicago, 1932-1970,” ed. Edmund W. Kitch, Journal of Law and Economics 26 (1983): 163.
112. “The Fire of Truth: A Remembrance of Law and Economics at Chicago, 1932-1970,”., 215. In “Social Cost” Coase does not cite Knight for the central proposition commonly referred to as the “Coase Theorem.” However, Coase later acknowledged that “Social Cost” was a “natural extension of Knight's insight that the institution of property rights would ensure that the excessive investment which Pigou thought private enterprise would make in industries subject to decreasing returns to scale would not in fact happen.” See Coase, “Law and Economics at Chicago,” 239, 250.
113. Coase, “Social Cost,” 2.
114. The tautological structure of economic arguments based on the assumption of “rational self-interest,” including the Coase theorem, have been noted by Paul Samuelson: “Except by fiat of the economic analyst or by his tautological redefining what constitutes ‘nonrational’ behavior, we cannot rule out a non-Pareto-optimal outcome.” See Samuelson, “The Monopolistic Competition Revolution,” in Collected Scientific Papers of Paul A. Samuelson, 5 vols., ed. Robert C. Merton (Cambridge: MIT Press, 1972), 3:18, 35, 36, n. 18.
115. Coase, “Social Cost,” 8 (emphasis added).
116. For an extended discussion of the facts surrounding the Sturges case, see Simpson, “Coase v. Pigou Reexamined,” 83.
117. Coase, “Social Cost,” 9 (emphasis added).
118. “Social Cost,”., 10.
119. “Social Cost,”., 18.
120. A similar observation regarding the lack of an empirical basis for Coase's antigovernment leanings has been made by A. W. Brian Simpson. See Simpson, “Coase v. Pigou Reexamined,” 75, 92-93. Coase disputes that his antigovernment leanings are without empirical grounding. He argues that during his tenure as editor of the Journal of Law and Economics the empirical studies on the economic effects of government regulation have led him to the conclusion that such regulation is “bad.” Coase, “Law and Economics and A. W. Brian Simpson,” 107-8.
121. The relationship between analysis and libertarianism is implicit in Coase's discussion of Hayek's role at the LSE. In the 1930s, it was not the libertarian manifesto Serfdom (which was yet to be published) but Hayek's “encouraging rigour in… thinking” that was his contribution to his students. See Coase, “Economics at LSE in the 1930's: A Personal View,” in Essays on Economics and Economists (Chicago: University of Chicago Press, 1994), 208, 209. However, Coase also notes that the effect of Hayek's, and Robbins's, teaching was to “make students look to private enterprise for solutions to economic problems” (214). As far as personal influence, Coase states that “[w]ith the arrogance of youth, I myself expounded the Hayekian analysis to the faculty and students at Columbia University in the fall of 1931.” See Coase, “How Economists Choose?” in Essays on Economics and Economists, 15, 19.
122. Coase, “Social Cost,” 33-34.
123. “Social Cost,”., 39.
124. Coase, “Notes on the Problem of Social Cost,” in The Firm, the Market and the Law (Chicago: University of Chicago Press, 1988), 157, 159.
125. “Notes on the Problem of Social Cost,”., 179.
126. “Notes on the Problem of Social Cost,”., 185 (emphasis added).
127. Coase, “Social Cost,” 43. For Coase's part, he believed in the fundamental “truth” of selfinterest. See Coase, “Economists and Public Policy,” in Essays on Economics and Economists, 58. This truth formed the core of Coase's belief that “government is attempting to do too much…” (62). Coase has recently emphasized the political differences between himself and Pigou, and how those differences affect his view on the social cost issue versus Pigou's. See Coase, “Law and Economics and A. W. Brian Simpson,” 115.
128. Section 402A states that: “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” Restatement (Second) of Torts, Section 402A (Philadelphia: American Law Institute, 1965).
129. Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970); hereinafter, Costs of Accidents. Costs of Accidents as a text reflected thoughts from several articles authored by Calabresi dating back to 1961.
130. Robert Rabin gives a brief account of the conceptual break between Fleming James's defense of strict products liability and the need for a reconceptualization after the 1960s: “With the two major areas of liability for unintended harm [products liability and no-fault auto compensation] in a state of flux [post 1960s], comprehensive reexamination of the merits of the fault principle was virtually inevitable. A leading influence among scholars taking an economic perspective has been Guido Calabresi….” See Rabin, Perspectives on Tort Law, 187.
131. Calabresi, Costs of Accidents, 5.
132. Costs of Accidents., 5.
133. Costs of Accidents., 27.
134. Costs of Accidents…, 13.
135. Costs of Accidents…., 20, n. 3 (emphasis added).
136. Costs of Accidents…., 20-21.
137. Costs of Accidents……, 26 (emphasis added).
138. Costs of Accidents……., 69.
139. Costs of Accidents……., 72.
140. Costs of Accidents………, 70.
141. Costs of Accidents………., 24.
142. Costs of Accidents………… Calabresi's discussion of justice mirrors Knight's arguments that “social justice” is a term that is “hopelessly undefinable” but allowing for agreement regarding “concrete injustices.” Knight, “Laissez-Faire: Pro and Con,” 788, n. 5 (emphasis in original).
143. Calabresi, Costs of Accidents, 24-25.
144. Costs of Accidents., 25-26.
145. Costs of Accidents., 32.
146. Costs of Accidents…, 26. This marks a strategic choice for Calabresi. As Robbins recognizes, other goals, like compensation, could have been set and then examined, from a neoclassical economics perspective, as to the means of achieving the goals.
147. Costs of Accidents…., 30.
148. Costs of Accidents…., 28, n. 6.
149. Costs of Accidents……, 39.
150. Costs of Accidents……., 39-40 (emphasis added). The commonsense notion that a loss to many affects economic well-being less than the same loss to one individual was even acknowledged by Knight. Knight, Risk, 239. Of course, given the libertarian core of Knight's beliefs, he would not use this commonsense observation to argue for a program of economic redistribution.
151. Calabresi, Costs of Accidents, 43. He points to Blum and Kalven as conflating the general problem of poverty with compensation in tort law (44, n. 11).
152. Costs of Accidents, (emphasis in original).
153. Costs of Accidents., 69.
154. Costs of Accidents., 50 (emphasis added).
155. Costs of Accidents…, 54.
156. Costs of Accidents…., 67.
157. Richard Posner, Economic Analysis of Law (Boston: Little, Brown and Company, 1972); hereinafter Economic Analysis.
158. Thomas Kuhn, Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970). Kuhn notes that textbooks play a key role in perpetuating normal science paradigms (10, 43).
159. Posner, Economic Analysis, 1 (emphasis added).
160. Economic Analysis, (emphasis added).
161. Richard Posner, “The Costs of Accidents-Book Review,” University of Chicago Law Review 37 (1970): 636, 637 (hereinafter, “Book Review”).
162. “The Costs of Accidents-Book Review,”., 637-38 (emphasis added).
163. Posner, Economic Analysis, 1 (emphasis added).
164. Economic Analysis., 1 (emphasis added).
165. Economic Analysis., 1-3.
166. Economic Analysis…, 4
167. Economic Analysis……, 5 (emphasis added).
168. Economic Analysis……., 7 (emphases added).
169. United States v. Carroll Towing Co., 159 F.2d 169 (2d. Cir. 1947).
170. Posner. Economic Analysis, 69.
171. Economic Analysis., 84.
172. Economic Analysis., 85.
173. Posner, “Book Review,” 646 (emphasis added).
174. Richard Posner, “Strict Liability: A Comment,” Journal of Legal Studies 2 (1973): 205, 211.
175. “Strict Liability: A Comment,”., 205, n. 1. Justice Traynor's concurrence in Escola was a major event in the intellectual construction of strict products liability. Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453 (Cal. 1944). For a discussion on the pragmatic instrumentalist critique of corporate power and its incorporation in Traynor's Escola concurrence, see Hackney, “Pragmatic Instrumentalism,” 498-500.
176. Posner, “Book Review,” 644.
177. “Book Review,”, (emphasis added).
178. Posner, “Strict Liability,” 221.
179. Posner, “Book Review,” 646.
180. See generally Restatement of the Law of Torts (Third) (Tentative Draft No. I) (Philadelphia: American Law Institute, 1994).