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Copyright (c) 1996 Michigan Law Review
Michigan Law Review

ESSAY: POSITIVISM AND THE SEPARATION OF LAW AND ECONOMICS

June, 1996

Michigan Law Review

94 Mich. L. Rev. 2229

Author

Avery Wiener Katz *

Excerpt

INTRODUCTION

The modern field of law and economics -- that is, the application of economic analysis to legal subjects other than trade and business regulation -- is now over thirty years old, but it remains controversial in the legal academy and, to a lesser extent, in the profession at large. Since its beginnings in the early 1960s, the economic approach has provoked substantial opposition and antagonism. The sources of this resistance, however, are a matter of dispute. Many economists and economically influenced lawyers attribute it to more traditional lawyers' reluctance to learn a new and unfamiliar set of concepts and techniques. Critics of the economic approach offer a variety of other explanations. Some are skeptical of the utility of abstract theoretical modeling in the social sciences, 1 others object to economics' central behavioral assumption of rational choice, 2 still others criticize economics' supposed libertarian politics and ideological allegiance to laissez-faire. 3 The explanation that has attracted the most attention by far is economics' commitment to the efficiency criterion: proponents of the economic approach tend to argue that more traditional lawyers have not paid enough attention to efficiency, and its detractors tend to argue that economics inappropriately focuses on efficiency to the exclusion of other normative considerations. 4

All these explanations, however, are too narrow. As with any conflict between rival disciplines, the underlying division between law and economics is methodological and cultural. The two fields use different rhetorics, different styles of discourse, different epistemologies, ...
 
 
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