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Law and Economics, Science and Politics

  • Neil Duxbury


I have been invited, and consider it a privilege, to comment briefly on James Hackney's article, Law and Neoclassical Economics. Perhaps it is unnecessary to remark that the article is both engaging and original. Not only does its quality speak for itself, but Hackney is not unforthcoming in speaking for himself. His in-depth and nuanced historical examination of law and neoclassical economics, he tells us, is the first to discuss the intellectual and political backdrop that facilitated law and neoclassical economics' rise to prominence and the first detailed exploration of how law and neoclassical economics as a field of study displaced pragmatic instrumentalist strands in legal theory. Hackney, clearly, could hardly be said to be unaware of the notion of product-differentiation.



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1. Hackney, James R. Jr, “Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory,” Law and History Review 15 (1997): 275322.

2. Ibid.. 277.

3. Horwitz, Morton J., “Law and Economics: Science or Politics?Hofstra Law Review 8 (1980): 905.

4. Hackney, “Law and Neoclassical Economics,” 275.

5. Ibid., 277.

6. Ibid., 276.

7. Ibid., 276, n. 6 (quoting from Schorske, Carl, “1987 Charles Homer Haskins Lectures of the American Council of Learned Societies,” in Life of Learning, ed. Greenberg, Douglas and Katz, Stanley N. [New York: Oxford University Press, 1994], 53, 64).

8. Hackney, “Law and Neoclassical Economics,” 276-77, n. 9.

9. See, e.g., Bowman, Ward S. Jr, Patent and Antitrust Law: A Legal and Economic Appraisal (Chicago: University of Chicago Press, 1973), 5760; Posner, Richard A., Antitrust Law: An Economic Perspective (Chicago: University of Chicago Press, 1976), x; and Bork, Robert H., The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978), ix.

10. See, in particular, the remarks about Director in Kitch, Edmund W., ed., “The Fire of Truth: A Remembrance of Law and Economics at Chicago, 1932–1970,” Journal of Law and Economics 26 (1983): 163.

11. See Duxbury, Neil, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), 341–48.

12. See ibid., 343, especially the quotations and comments accompanying notes 218 and 219.

13. Since Director primarily influenced those Chicagoans who developed a neoclassical perspective on antitrust, it would be better also not to confine oneself to the impact of neoclassicism on the analysis of tort law.

14. None of the three texts upon which Hackney focuses first appeared during the past quarter century; yet this has been the period during which law and neoclassical economics has flourished. For someone so intent on not skimming cream from intellectual milk, Hackney seems peculiarly inattentive to current scholarship and, indeed, to the actual evolution of neoclassical legal-economic thought.

15. Hackney, “Law and Neoclassical Economics,” 314.

16. Ibid., 310. Later Hackney states that “Calabresi broke from this subjectivist assumption” (ibid., 315).

17. Ibid., 311.

18. Ibid., 312.

19. Ibid., 315.

20. Ibid.

21. For Calabresi, justice must be regarded “as a veto or constraint on what can be done to achieve cost-reduction,” as “a final test which any system of accident law must pass.” See Calabresi, Guido, The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970), 24, n. 1.

22. See, e.g., ibid., 79: “The classical economist will show ad nauseam that those who were made better off by moving to a free market choice system based on full costs could more than compensate those who were made worse off. The problem is that such hypothetical compensation rarely comes about. It may be too expensive; it may be made feasible only through the levying of taxes that misallocate resources grievously; or it may be politically impossible to accomplish. In all such cases, the theoretical desirability of the totally free market approach has little significance in practice.” Making a case for Calabresi's work as standing outside the neoclassical tradition becomes easier—and this is but an extension of point 2, above—if one considers his writings subsequent to The Costs of Accidents. See, e.g., Calabresi, , “About Law and Economics: A Letter to Ronald Dworkin,” Hofstra Law Review 8 (1980): 553, 556–59.

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Law and Economics, Science and Politics

  • Neil Duxbury


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