Professors Debate Law, Economics

At a panel in Austin Hall at Harvard Law School (HLS) last night, five law professors tackled the question whether progressive law and economics can fit together.

At a panel titled “Progressive Law and Economics: An Oxymoron?” they all agreed that it is possible to combine the study of law and economics with progressive values but warned that those who do will be so out of place in their environment that they will standout like “flying fish.”

About 100 people gathered at the event sponsored by the HLS American Constitution Society to hear HLS Professors Jon Hanson, Morton Horwitz, Frank Michelman and Joseph Singer and Boston College Law Professor Kent Greenfield discuss what they saw as the political biases of law and economics and the different ways in which progressives can navigate them.

According to the society’s events co-coordinator, first-year law student Adam Neufeld, the group intended the panel to “foster progressive debate,” “build the community of progressives and liberals,” and “show the diversity of thought” within progressive scholarship.

Responding to the panel’s title question, Hanson said, “Absolutely the same sense that a flying fish is not an oxymoron.”

Progressive practitioners of law and economics, in his view, were simply a very unusual breed in their environment.

Hanson explained the metaphor by saying, “In the same way that fish were not built for flying, law and economics was not built to reach progressive conclusions.”

Hanson listed several biases that he said skew the practice of law and economics toward “pro-commercial, pro-corporate” interests because conservative ideas “are profitable and worth subsidizing” to those interest.

“The issues they look at, the demographics of the group, their presumptions and assumptions all reflect that bias,” he said.

Despite that bias, Hanson said, it is still possible for law and economics theory to be used to reach progressive conclusions, in the same way as it is possible for fish to occasionally leap out of water and appear to fly.

“Interestingly though, the other fish don’t seem that impressed, except for the big ones, who try to eat us,” he said.

Horwitz, who teaches the Core course “The Warren Court,” addressed the topic’s historical context.

He said the current conservative trend in law and economics began after World War II, when scholars were “yearning for objectivity” and dismissive of anything that seemed too political.

Nonetheless, Horwitz said he sees a role for progressive practice of law and economics.

“If you learn to play within [law and economic’s] rules,” he said, “you can find plenty of modes that justify [progressive outcomes] with law and economics.”

Singer explained several assumptions of law and economics that “place the burden of proof in a way that is hostile to progressive values” citing the tendency of law and economics to give weight only to quantifiable factors.

Hanson concluded the discussion with a grave warning that “our institutions are being reformed everyday by a school of thought that is flawed and biased” and is “trashing our values.”

“We have to deconstruct” it, he said.