Filed under: brave new world | Tags: efficiency, feasibility, justice, law, society, Ted Hamilton
I used to teach at a university which installed as its dean the ex ceo of Jiffy Lube, his administrative and money skills no doubt outweighing his academic credentials at the selection interviews.
So what do we get when we put businessmen and economists at the top of our institutions, like government and universities? The accepted argument is solvency and profit, but are there other dividends?
Here’s a portion of an essay by a Harvard law student. He describes courses in which ‘feasibility’ and ‘efficiency’ are the central, generative ideas, and ‘justice’ – which one would believe to be central to the study of the law – tertiary.
Feasibility and efficiency are the lingua franca of the economist / businessman counting and distributing his beans: what are they doing in courses in the law at America’s best school?
The Johnny-come-lately nineteenth century science, economics, has come a long way and occupies a position of extreme privilege. It’s illegitimate. The study of law should be the study of law. When it’s whored out to business it stops defining, protecting and facilitating justice. It leads to self interest and self destruction.
Here is Ted Hamilton:
A year ago, I imagined — as most people probably do — that the initial year of legal studies would put a heavy emphasis on the good. I anticipated lots of lofty vocabulary about justice and rights and freedom. Attorneys may not have the cleanest reputations, but it seems fitting that an introduction to the life of the law would aim high, if only as an idealistic and rhetorical reprieve before the realities of the job market set in. But while there’s certainly some discussion of liberty and righteousness in the halls of our law schools, there’s not quite as much of it as you might think. The path to the bar is not paved with sentimental cobblestones of the Good and the Right. It’s much more pragmatic than that.
In fact, the most repeated word in my first year law curriculum was not justice, or liberty or order.
It was efficiency.
Since September, I’ve been encouraged to think about the law less as a journey toward justice and more as a means for distributing resources.
In nearly every discussion of a given law or a proposed policy, the first question was feasibility, and the second (or third) was justice. “Feasibility” means financial soundness. Financial soundness requires measurement. So in order to measure and mete out our resources, legal questions grasp for the harsh insights of computation.
According to this oddly constrained worldview, the legal system is just another (and comparatively imperfect) means for achieving “wealth maximization.”
In the obvious — and obviously ideological — corollary to all this, law school has tried to convince me that it’s not lawyers or judges that should decide the hard questions of law: It’s economists. The white knights of the 21st century legal academy, economists are uniquely equipped, so they claim, to furnish us wishy-washy idealists with the quantitative rigor to perform the difficult, and consummately serious, analysis that policy and politics require.
In other words, society is a problem. And legal economics is here to solve it.
The complete immersion of our legal class into this language of economics has a corrosive effect on its imaginations, leaving our lawyers unequipped to think outside the box. A singleminded pursuit of efficiency loses sight of the inherent messiness of society and the legal rules that grapple with it. By reducing everything to entries in a formula and by seeing human behavior as limited to “rational pursuit of maximum value,” law and economics conjures up a version of the self-interested and self-destructive world that we now inhabit.
Attorneys may never be an altogether altruistic bunch. But they’d probably do better if they spent their law schools days focusing less on the elusive search for mathematical solutions and more on the inherent contradictions of society. Our world today is facing many unprecedented dilemmas, dilemmas that require ambitious and global solutions. Such solutions inevitably require asking uncomfortably imprecise questions about justice, fairness and order. We should be eager, I think, to confront such questions with the most wide-ranging imaginations we can.
Why law school’s love affair with economics is terrible for the American legal system, Law schools are putting more and more emphasis on a cash-crazed free market ideology. Here’s what’s at stake,
picture credit: acouplecooks.com
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