Does Law and Economics Destroy Law Students’ Sense of Justice?

Judge Posner, Whose Pen Launched a Thousand Econo-Careers

Richard Posner. Founder. Latter-Day Apostate?

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?

The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency.  By contrast, students taught by humanists were more generous and also  likely to see fairness as a matter of equity.

These are important results for those interested in legal education.

  • First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them.  I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism.  It’s also surprising that Yalies are so impressionable!  I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
  • Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine.  As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments.  We should do more work like this!
  • Third, and most personally, this makes me nervous.  I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case.  I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions.  But maybe I’m also indoctrinating the students to grab more of the pie for themselves.  Nuts.

*The method they used to code economic preferences was, to be frank, a little mystifying.  They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set.  Why not simply ask the professors themselves how much they emphasized economic rhetoric in class?  Or the students?

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4 Responses

  1. Anon YLS Student says:

    I read a draft of this paper recently. I shared several of the same basic concerns, though the results are really not of the sort that should make anyone nervous.

    A few things that puzzled me, based on experience with most of these professors:

    (1) Economics described as “ideology.” This is standard trope for Markovitz, though in a law school class it’s hard to classify teaching best-cost-avoider strict liability or optimal default rules as an exercise in self-interested ideology. In this setting, though, economics is better described as a logic, not an ideology. In other words, if there’s a legal rule or outcome that puzzles students with no substantive understanding of economics, they’ll at least see the logic underlying the reasoning (fallacious or not).

    (2) CLS & law/econ have similarly deconstructive bents–neither is particularly supportive of formalism. The only difference might be that CLS or humanist scholars happen to be, on the whole, farther left than law/econ types, and thus are more likely to emphasize redistributive goals–that is, those generally on par with how their students initially view the desirability of legal rules. The interesting story would be the causal mechanism.

    (3) Few, if any, of the law/econ profs ignore the “humanist” or CLS bent, and generally give it a stronger treatment in their classes than CLS/humanist professors give to law/econ. What does it say when students who are exposed to methodologies with which they’re less familiar, or which challenge their preexisting views, are more prone to become self-interested? I’d call that progress, not cause for being nervous. They’re probably just growing up.

  2. A.J. Sutter says:

    I also found the paper’s use of italics a bit bizarre. Also that the authors felt it was more significant, in context, that Hilary Clinton had attended YLS than that the President had taught at University of Chicago.

    Dave’s emphasis on efficiency arguments is a good example of economics as ideology, not “logic”. But it speaks well of you that you’re nervous about it.

  3. Not exactly a gripping read but I couldn’t help but enjoy the hand-wringing the authors employ at the end of the paper over the supposed impact of “economics” professors and then notice that the single most influential (by obs.)”economics” professor was liberal stalwart Judge Calabresi. heh heh