An Appeal for the "Liberal" Use of Law and Economics: The Liberals Fight Back
As a liberal Democrat' who grew up in an urban environment in the late sixties, in a home in which it was a crime not to vote a straight Democratic ticket, my decision to accept an offer to teach at the University of Virginia School of Law-an institution nationally known for its faculty's conservatism and adherence to "Chicago School" economic analysis of law-surprised quite a few people, including myself. At worst, I assumed, I would encounter what I naively perceived to be the "right-wing" economic analysis of law employed by such noted scholars as Judge Richard Posner and Professor Richard Epstein. I further anticipated that after an appropriate learning period, I would emerge from my descent into the lion's den of law and economics sufficiently educated and ennobled to expose the inherent deficiencies of that school of thought. I thought I would join other committed liberals (but not proponents of Critical Legal Studies, who seem to have their own nihilistic agendas) in repudiating the use of economics to analyze legal issues. Thus, I went to Virginia with a plan: learn thine enemy better than thyself.
Imagine my surprise when I realized that instead of merely learning the basic principles of economic analysis of law as presented by my colleagues in their scholarly works, I was beginning to embrace elements of economic analysis as a method of analyzing problems "in a systematic way [in] areas of law that did not avowedly regulate economic relationships."' Terms of art such as "Coase Theorem," "the cheapest costavoider," "rational economic actor," and "internalization of externalities" began to creep into the teaching material of the first-year property course that I have taught for the last five years. My scholarship likewise began to reflect this growing fascination with the economic analysis of law.