Over at the U.S. Intellectual History blog, Sara Mayeux has a smart post analyzing different explanations for the emergence and influence of the “law and economics” approach to legal scholarship. In one form, law and economics scholarship is explanatory and historical—as Mayeux notes, it explains “why the law is the way it is.” But it can also serve as a method for normative analysis: “how the law should be.” As Mayeux writes, law and economics is not a uniformly conservative approach to scholarship, but it’s interesting to note that its emergence in the 1960s does overlap with the birth of the modern conservative movement. And the connections don’t end there.
One obvious link is the University of Chicago. Mayeux notes that if the gospel of law and economics is Ronald Coase’s seminal 1960 article “The Problem of Social Cost,” its evangelical letters were Richard Posner’s 1973 book Economic Analysis of Law. Coase moved to Chicago in 1964; Posner was hired there in 1969. Both were colleagues of (and, in later years, Posner was a co-blogger with) economist Gary Becker, who in 1976 published The Economic Approach to Human Behavior, which (as I noted recently) was a major text in developing economics as a unified theory of human behavior. By the 1970s, the ambitious application of economics to previously untouched areas of human life was in full swing at Chicago. And as this approach became more widespread, the distinction between its descriptive use and its normative use was often blurred.
As Mayeux writes, the spread of law and economics has been studied as a mostly local affair (a doctrinal rebellion by ambitious young law students), as well as part of a larger cultural-intellectual trend. But the political scientist Steven Teles (in his book The Rise of the Conservative Legal Movement) analyzes it in terms of mobilization, resources, and the key roles of individuals: “reconstruct[ing] two generations of committee meetings and grant applications,” as Mayeux puts it, “into a sort of Bildungsroman in which law and economics comes into its own through chance encounters with generous patrons and gains the wisdom over time to work around obstacles.”
Before I go on, it’s important to clarify that law and economics is common throughout legal scholarship, and it is neither narrowly partisan nor intellectually disreputable. Scholars on both left and right have produced reams of impressive work in the tradition. But it’s also true, as Mayeux notes, that the right recognized its potential from the start, which explains why “the crucial early funding for law and economics programs came from conservative foundations.” I’d add, more broadly, that nobody can control the spread and mutation of new ideas—not even their founders. And economic logic, in particular, has demonstrated a pervasive quality over the last few decades. Once introduced into a new field of study, even as an analytical tool, it soon mutates into a normative way of thinking—displacing other ways of talking about norms and values.
It may seem at first that this is not a flattering way to talk about intellectual life. But it would be absurd to claim that ideas (including political views) rise or fall in a purely meritocratic fashion. They owe their fate not only to intrinsic merit, but to factors like luck, timing, and institutional support. (Of course, these latter factors don’t tell the whole story, or my line of work would have no purpose.)
This is an insight traditionally associated with the left: As the campus radicals say, knowledge production is political. But in the context of national politics, this lesson is far better appreciated by conservatives. If nothing else, the conservative movement has been an extraordinary purveyor of ideas. Conservative foundations and think tanks employ philosophers, political theorists, and historians; they sponsor book clubs and lectures on the ideals that animate their politics; they generously fund scholarship on the philosophical roots of conservative ideas. Liberal foundations and think tanks generally don’t do those sorts of things, at least not on anything approaching that scale. And the results seem clear enough: One can easily associate American conservatism with a philosophy and basic set of widely disseminated principles (including, among others, the primacy of the market and economic thinking). Liberals have a harder time summing up their views, which strikes me as both a cause and a symptom of this lag.
To be clear, I don’t want to advocate this as a model to be imitated: Lots of the people supported by conservative groups are hacks and cranks, and their work varies widely in quality and credibility. (As a side note, I think it would be fascinating to see a book-length evaluation of the long-term effect of the ‘ideas buildup’ on the conservative movement.) It’s not impossible to produce rigorous, intellectually honest scholarship in the service of some political agenda, but it’s quite difficult, and without a deep institutional integrity, the incentives are often directed towards shoddy work. In fact, it’s arguable that there’s no longer any conservative think tank that still enjoys wide respectability—Heritage, despite what some nostalgists claim, never really did, and the American Enterprise Institute’s reputation hasn’t recovered from the self-inflicted blow of purging David Frum.
Still, conservatives seem to have a much sharper appreciation of the mutually reinforcing relationship between ideas and political mobilization. Perhaps this is partly because many in the conservative movement were also connected, if distantly, to the rise of law and economics—and so they know from experience that while powerful ideas do have innate potential, they still need influential supporters before they can remake the world.