Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

Our discipline is no longer nourished by huge advances outside its own field. Familiar doctrinal issues are exhausted: we do not need yet another theoretical article that proves the (in)efficiency of comparative negligence. So where do we go? One possibility is to examine the foundations of the field to show, for example, that the language of "preferences" is inadequate for economics, as some economists themselves have tried to do.' But I see little return from this approach. Whatever it may capture about the foibles of individual decisionmaking, it seems to be a philosophical difficulty in search of a real world problem. It is the kind of terminological doubt that to me adds little to the institutional knowledge about the major decisions facing any political order. Rather, I think that the greatest hope for advancement, barring any major unforeseen conceptual breakthrough, is from more attentive study to the evolution-be it by growth or decline, or both-of particular institutions and social arrangements. In effect, the study of legal doctrine and theory has to be enriched with a greater appreciation of institutional arrangements. There are vast areas of historical and social activity that would repay close study, such as the evolution of telecommunications, public utilities, banking, insurance, and nonprofit organizations. To be sure, much work of this sort has already been done, but it is often by economists or lawyers who are insensitive to the demands of history, or by historians who are less than fully conversant with the relevant economic tools. How this program will play out is anyone's guess, which is why the future of the field is so hard to predict. In a sense, Law and Economics has been a victim of its own success. Once its principles were understood, then only the task of mopping up remained. But given the vast array of social experiments, both past and future left to analyze, perhaps such a modest program will yield larger dividends than we skeptics may have guessed. Only time will tell.

First Page

1167

DOI

https://doi.org/10.2307/1600212

Volume

64

Publication Date

1997

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