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

Economic analysis of law (EAL)(1) was born in the early 1960s with the publication of two seminal articles: one by Ronald Coase, the other by Guido Calabresi.(2) But it is with the 1973 publication of Judge Richard Posner's Economic Analysis of Law(3) that EAL began to have a dramatic impact

Before the ink had dried on Posner's jurisprudential thesis, critics emerged.(6) Some labeled EAL as the unwelcome ghost of Langdellian formalism, long since buried, and properly so.(7) Others linked EAL to a discredited version of philosophical utilitarianism.(8) Still others denounced EAL as insensitive if not overtly hostile to natural rights.(9) In fact, a whole school of thought, Critical Legal Studies (CLS), arose, at least in part, as an attack on the perceived short-comings of the method and values of EAL.(10)

Throughout the 1970s and 1980s Posner patiently defended the jurisprudential foundations of EAL.(11) Responding to the label of conceptual formalism, he reminded his critics that EAL was empirically grounded in the world of fact.(12) He carefully explained how his notion of "wealth maximization," though related to utilitarianism, avoided many of the latter's excesses and pitfalls.(13) In answering the criticism that a myopic pursuit of efficiency would smother civil liberties, Posner repeatedly pointed out that efficiency was only one norm that could be trumped by other norms.(14) Notwithstanding these defenses, hostility to EAL persisted.(15)

With the publication of two recent books, The Problems of Jurisprudence(16) and Overcoming Law,(17) Judge Posner's defense of EAL has taken a new turn. If none of the foundations of EAL are immune from attack, that is okay, because at its heart EAL has no foundations.(18)

EAL, properly conceived, is part of the postmodern world.(19) Embracing a branch of postmodernism, legal pragmatism, Posner's new defense eschews foundationalism in favor of a jurisprudence steeped in empiricism, sensitive to context, and devoutly skeptical.(20)

Exploring this "postmodern" vision of EAL provides the subject matter of this article. At first blush, the juxtaposition of postmodernism and EAL seems odd, if not paradoxical. EAL has generally been conceived as a distinctively modern attempt to render law objective.(21) Economic efficiency, wealth maximization, and similar economic concepts have been offered as a means of "solving" legal dilemmas with reference to well defined external criteria. By contrast, postmodernism, including CLS, legal pragmatism, radical race theory and the like, stands for the proposition that such overarching principles cannot exist.(22) Life is too fluid, values change, and social consensus is context dependent. Postmoderns are skeptical of any unifying theory of justice, economic or otherwise. In this light, the questions become what would a postmodern EAL look like? And is such a conception useful?