Under Cover of Science , livre ebook
261
pages
English
Ebooks
2007
Obtenez un accès à la bibliothèque pour le consulter en ligne En savoir plus
Découvre YouScribe et accède à tout notre catalogue !
Découvre YouScribe et accède à tout notre catalogue !
261
pages
English
Ebooks
2007
Obtenez un accès à la bibliothèque pour le consulter en ligne En savoir plus
For more than two decades, the law and economics movement has been one of the most influential and controversial schools of thought in American jurisprudence. In this authoritative intellectual history, James R. Hackney Jr. situates the modern law and economics movement within the trajectory of American jurisprudence from the early days of the Republic to the present. Hackney is particularly interested in the claims of objectivity or empiricism asserted by proponents of law and economics. He argues that the incorporation of economic analysis into legal decision making is not an inherently objective enterprise. Rather, law and economics often cloaks ideological determinations-particularly regarding the distribution of wealth-under the cover of science.Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries. Thus Hackney's narrative is a history not only of law and economics but also of select strands of philosophy and science. He traces forward from the seventeenth-century the interaction of legal thinking and economic analysis with ideas about the attainability of certitude. The principal legal-economic theories Hackney examines are those that emerged from classical legal thought, legal realism, law and neoclassical economics, and critical legal studies. He links these theories respectively to formalism, pragmatism, the analytic turn, and neopragmatism/postmodernism, and he explains how each of these schools of philosophical thought was influenced by specific scientific discoveries: Newtonian physics, Darwin's theory of evolution, Einstein's theories of relativity, and quantum mechanics. Under Cover of Science challenges claims that the contemporary law and economics movement is an objective endeavor by historicizing ideas about certitude and empiricism and their relation to legal-economic thought.
Voir
under cover of science
u n d e r c o v e r o f s c i e n c eo a m e r i c a n
legal-economic theory and the quest
f o r o b j ec t i v i t yoy Jr.R. Hackne James
Duke University PressGDurham and London 2007
∫2006 Duke University Press
All rights reserved.
Printed in the United States of America
on acid-free paper$ Designed by Katy Clove Typeset in Minion by Keystone Typesetting, Inc. Library of Congress Cataloging-in-Publication Data appear on the last printed page of this book.
Acknowledgments
ix
prologueoThe Structure of American Legal-Economic
Theory
xiii
oneoModern Science, Classical Thought,
and the Birth of American Legal-Economic Theory
twooThe Pragmatic Reconstruction of
American Legal-Economic Theory
39
1
threeoNeoclassicism and the Reprise of Formalism
81
contents
fouroThe Dissolution of American Legal-Economic Theory
epilogueoGazing into the Future and Our
Postmodern Times
Notes
Index
175
227
157
121
To my wife (Ann McCarthy Hackney), my son (Adrian Hackney), and my
mother (Vernia Hackney)—the three people who have shaped my past, present,
and future.
acknowledgments
My venture into intellectual history was in many ways accidental. G I majored in economics as an undergraduate, and did just enough graduate work in the subject to realize I did not want to pursue a doctorate. However, I was fortunate to be able to continue my inter-est in economics at Yale Law School, which had a wide array of scholars devoted to the field. The list of my professors who served as mentors and tutored me in law and economics included Guido Calabresi, Jules Coleman, Henry Hansman, George Priest, Susan Rose-Ackerman, Roberta Romano, and Alan Schwartz. Each in his or her own way contributed to my understanding of economics and its intersection with law. However, I have to lay my interest in the intellectual history of what I refer to as ‘‘legal-economic theory’’ at the feet of Calabresi and Priest. Dean Calabresi (whom we all re-ferred to as Guido, even as students) fascinated me during my first-year torts class. It was during those initial days in law school that my mind began to tussle over how lawyers think about economics and law. My first encounter with the intellectual history of legal-economic thought was an article by Priest on the intellectual origins of strict products liability. What struck me as a student most about the article, aside from the discerning scholarship, was that the narra-tive spun out by Priest seemed to miss some of the texture I associ-ated with strict liability arguments from having sat in Guido’s class. Time passed, and after a brief respite as a corporate lawyer I made my way into the legal academy. Soon my attention was directed at resolving my student angst. The result was an article entitled ‘‘The Intellectual Origins of American Strict Products Liability: A Case Study in American Pragmatic Instrumentalism.’’ There was quite a
