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Book Review
| James R. Hackney, Jr., Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity, Durham, N.C.: Duke University Press, 2006. Pp. vii + 238. $79.95 cloth (ISBN 978-0-8223-3981-6), $22.95 paperback (ISBN 978-0-8223-3998-4).
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| Love it or hate it, the law and economics movement, with its self-proclaimed objectivity, has dominated American legal discourse since the 1970s. In a sweeping narrative, covering four centuries, James Hackney's Under Cover of Science seeks to undermine the movement's stronghold by unearthing the complicated relationship between science, economics, and legal thought. |
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Hackney covers a large territory and tells several parallel stories. The development of scientific theory from Newtonian physics to Darwinian evolutionary theory to Einstein's theory of relativity and, ultimately, to the demise of scientism in the last decades of the twentieth century is described as the catalyst of important transformations in American thought, especially in legal-economic theory. The appeal of scientific thought to legal scholars and economists was its claim for objectivity. But, as Hackney argues, when legal-economic theory imitated science, it assumed an aura of objectivity that masked its political and social ideologies. The law and economics movement is the most recent manifestation of this phenomenon. |
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Hackney begins by tracing Blackstone's Commentaries, a four-volume work written between 1765 and 1769 in an attempt to systematize English common law and that was extremely influential in antebellum America, to Newton's mechanistic vision of the universe. Just as Newton described the laws of motion as determining the working of the universe, Blackstone described natural law principles as determining the working of the common law; all legal rules were deduced from these principles. Yet, while Newton derived physical laws from empirical, objective, observations, Blackstone derived them from observing the English common law, which was both "socially constructed and politically charged" (17). Proclaiming objectivity, the Commentaries helped legitimate the existing allocation of property and wealth. |
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In the second chapter, Hackney uses developments in tort theory to demonstrate how, by the first half of the twentieth century, American legal-economic theory, influenced by Darwinian theory, turned from deductive formalism à la Blackstone to empiricism and inductive inquiry. But this shift was not value free. As Hackney demonstrates, it went hand in hand with an ideological shift from laissez faire toward redistributionist policies. Legal realists, the main proponents of the new approach, used social scientific studies to promote a progressive agenda and ultimately to legitimate the modern administrative state. |
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The third chapter explores how the postwar analytical turn toward logic and physics, dominated at that time by Einstein's theory of relativity, served as a catalyst for the emergence of neoclassical economics and its progeny, the law and economics movement. Appropriating the positivist distinction between facts and values, neoclassical economists argued that, like science, economic analysis must be devoid of ethical considerations. Yet, as Hackney argues, like the deductive formalism of the nineteenth century, neoclassical economics' claim to be scientific helped legitimate the status quo distribution of wealth. Free competition was presumed to promote efficiency; law's role was that of a neutral arbiter, facilitating free interactions among individuals. |
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Hackney's narrative ends at the turn of the twenty-first century with what he labels "the demise of scientism." American legal-economic theory, he writes, "is for the first time left unfettered. The political contestation that has been cloaked in science is revealed" (128). For the first time jurisprudential movements as ideologically divergent as law and economics and critical legal studies turn to legal-economic theory to promote their agendas. While the former movement seeks to make efficiency the concern of legal rules, the latter wants legal analysis to focus on the distributional consequences of legal rules. If the history of legal-economic theory thus far was hegemonic, with dissenting voices rapidly fading (at times to reappear later), the demise of scientism introduces the possibility of dialogue between plural legal-economic theories. |
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Under Cover of Science is well written and Hackney draws important connections between writings from different disciplines. But the book is not without fault. Hackney's attempt to offer an overarching narrative of the development of legal-economic theory leaves the narrative fixated on abstract connections between several canonical works. For the most part, the social, economic, cultural, political, and even ideological context that anchored these works is missing. Moreover, the choice of works is at times perplexing. Clearly, Hackney explores the major canonical works and draws interesting connections among them, but the reader is not offered an explanation as to why these works and not others. For one thing, the lack of attention to dissenting voices makes the history more one-dimensional, or hegemonic, than it really was. The works also range from science, to philosophy, to economics, to politics, to law, but not all of them are easily related to the book's focus, that is, the development of legal-economic theory. Despite such faults the book provides an important overview of the relationship between science, economics, and law. It is likely to encourage more detailed historical explorations of the questions that it leaves unanswered. |
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| Dalia Tsuk
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| George Washington University Law School |
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