Contrary to Livermore,’s post, in my view Driesen’s book is particularly powerful as a window into the profound absurdity and destructiveness of the neoclassical economic framework, rather than as a middle-ground tweaking some of its techniques. Driesen’s economic dynamics lens makes a more important contribution than many contemporary legal variations on neoclassical economic themes by shifting some major assumptions, though this book does not explore that altered terrain as far as it might.
At first glance, Driesen’s foregrounding of the “dynamic” question of change over time may, as Livermore suggests, seem to be consistent with the basic premise of neoclassical law and economics: that incentives matter, and that law should focus ex ante, looking forward at those effects. A closer look through Driesen’s economic dynamics lens reveals how law and economics tends to instead take a covert ex post view that enshrines some snapshots of the status quo as a neutral baseline. The focus on “efficiency” – on maximizing an abstract pie of “welfare” given existing constraints — constructs the consequences of law as essentially fixed by other people’s private choices, beyond the power and politics of the policy analyst and government, without consideration of how past and present and future rights or wrongs constrain or enable those choices. In this neoclassical view, the job of law is narrowed to the technical task of measuring some imagined sum of these individual preferences shaped through rational microeconomic bargains that represent a middling stasis of existing values and resources, reached through tough tradeoffs that nonetheless promise to constantly bring us toward that glimmering goal of maximizing overall societal gain (“welfare”) from scarce resources.
Driesen reverses that frame by focusing on complex change over time as the main thing we can know with certainty. In the economic dynamic vision, “law creates a temporally extended commitment to a better future.” (Driesen p. 52). Read More