Thursday, November 8, 2007
Posted by D. Daniel Sokol
Perhaps the most provocative paper this year comes from Spencer Waller of Loyola University of Chicago School of Law. In homage perhaps to the 1986 Sylvester Stallone movie Cobra (tagline "Crime is a Disease. Meet the Cure."), Spencer likens the Chicago School of economic analysis of the law to a viral infection in The Chicago School Virus.
ABSTRACT: The Chicago School of Law and Economics is a leading example of a highly successful legal ideology. As one recent commentator has noted: “[T]he basic characteristic of the Chicago School is the belief that free markets and the price mechanism are the most effective and desirable ways for a society to organize production and economic life in general.” The Chicago School of Law and Economics applies these insights to legal questions and views the creation and enforcement of legal rules primarily in terms of how legal rules and institutions promote allocative efficiency and wealth maximization.
While much ink has been spilled in chronicling the strengths and weaknesses of a Chicago School approach to particular legal problems, there has been far less analysis of why certain fields of law and legal jurisdiction have been prone to adopt a Chicago School approach and why others have been resistant.
This essay is the first step to analyze the successes and failures of the Chicago School in terms of the institutional characteristics of the fields of law where the Chicago School has had the most influence and those where it has encountered the most resistance. I argue that the institutional characteristics of the field of law are a more significant determinant of whether the Chicago School takes hold or is rejected than the correctness or the error of the substance of the analysis that it offers or the interests that it serves or opposes.
I use the metaphor of the virus to capture the dynamics of how the Chicago School has spread by penetrating a new area of the law, replicating itself, and transmitting itself to adjacent bodies of law and where it has been rejected. The viral metaphor is particularly apt as a tool to analyze the spread or rejection of legal ideology because it both describes and predicts how an outside influence gains entrance into a host body of law, uses the host to reproduce and spread within that body of law, and later expresses the now multiplied virus to other near by hosts.
This essay proceeds as follows. I first briefly summarize the development of the Chicago School of law and economics, analyze the importance and necessity of metaphoric reasoning in law, and explore the nature of the virus with an emphasis on how it attaches itself to and enters its hosts, replicates itself many times over using the host's own cellular structure to do so, and then expresses itself to carry on the process again and again with new hosts.
Part IV uses the viral metaphor to suggest two tentative hypotheses to explain the relative successes of the Chicago School in some fields and its relative failures to dominate the discourse in other fields. First, I contend that the more centralized the host body of law, the greater likelihood of success of a successful infection and the adoption of the new ideology. Second, I contend that the presence of a strong competing first principle in the host body of law will act as an effective antibody immunizing the host from the successful introduction of a new ideology, be it the Chicago School or other way of thinking and speaking about law.
I then test these hypotheses by examining a wide range of legal discourse where the Chicago School has been introduced. Examples drawn from US and European antitrust law, consumer protection, child and family law, and even Catholic Social Thought illustrate how my hypotheses help explain where the Chicago School has succeeded or failed in changing the legal discourse, or where it is simply too soon to tell. Part VI concludes with my reflections on how the viral metaphor can be extended as well as some ironies that the metaphor suggests about the future influence of the Chicago School itself.