Skip to main content

A Life-Cycle Theory of Legal Theories II



To continue with the thoughts I was discussing last week under this heading:

Under the  view I'm discussing, a variety of prescriptive legal theories have "worked themselves impure" in the words of Kessler and Pozen. These theories have begun as a purist account of how the law ought to work given one central idea. But they then have encountered difficult facts, contending interpretations, etc. and have gradually incorporated impurities, until it becomes clear that they weren't the revolution or New Paradigm they were first sold as.

An example, cost-benefit analysis. In the incarnation that concerns the authors of this life-cycle view, CBA got a bold start in the early 1980s, but encountered difficulties before the end of that decade, in part because of an atmosphere of scandal that came to surround some of the administrative offices that had to take the point on this march.

Also, on the academic front, CBA came under criticism for being a mere pretext for a political push to deregulate for the sake of deregulation. Robert Percival would write in 1991 that the program focused "almost exclusively on reducing costs to industry."

The Clinton administration (the "first Clinton administration," as history will eventually record it) gave a bipartisan cast to CBA by announcing its own initiatives under that name in 1993. Yet the theory was by this time considerably more "impure" than it had been and became more so through the next turn of the partisan cycle -- another Bush, and Obama. People began to talk about weighing "qualitative" as well as "quantitative" elements as costs and as benefits.

Over time, by the lights of people such as Judge Posner who had advocated the earlier purer sort of CBA, this was no longer CBA at all. The whole point was to treat both sides as quantitative. Otherwise, the whole concept of the balance between them seems senseless.

Such then is the life cycle.

Labels

Labels:

Comments

Post a Comment

Popular posts from this blog

A Story About Coleridge

This is a quote from a memoir by Dorothy Wordsworth, reflecting on a trip she took with two famous poets, her brother, William Wordsworth, and their similarly gifted companion, Samuel Taylor Coleridge.   We sat upon a bench, placed for the sake of one of these views, whence we looked down upon the waterfall, and over the open country ... A lady and gentleman, more expeditious tourists than ourselves, came to the spot; they left us at the seat, and we found them again at another station above the Falls. Coleridge, who is always good-natured enough to enter into conversation with anybody whom he meets in his way, began to talk with the gentleman, who observed that it was a majestic waterfall. Coleridge was delighted with the accuracy of the epithet, particularly as he had been settling in his own mind the precise meaning of the words grand, majestic, sublime, etc., and had discussed the subject with William at some length the day before. “Yes, sir,” says Coleridge, “it is a maj...
9 comments
Read more

The Lyrics of "Live Like You Were Dying"

Back in 2004 Tim McGraw recorded the song "Live Like You were Dying." As a way of marking the one-decade anniversary of this song, I'd like to admit that a couple of the lines have confused me for years. I could use your help understanding them. In the first couple of verses, the song seems easy to follow. Two men are talking, and one tells the other about his diagnosis. The doctors have (recently? or a long time ago and mistakenly? that isn't clear) given him the news that he would die soon. "I spent most of the next days/Looking at the X-rays." Then we get a couple of lines about a man crossing items off of his bucket list. "I went sky diving, I went rocky mountain climbing, I went two point seven seconds on a bull named Fu Man Chu." Then the speaker -- presumably still the old man -- shifts to the more characterological consequences of the news. As he was doing those things, he found he was loving deeper and speaking sweeter, and givin...
1 comment
Read more

Searle: The Chinese Room

John Searle has become the object of accusations of improper conduct. These accusations even have some people in the world of academic philosophy saying that instructors in that world should try to avoid teaching Searle's views. That is an odd contention, and has given rise to heated exchanges in certain corners of the blogosphere.  At Leiter Reports, I encountered a comment from someone describing himself as "grad student drop out." GSDO said: " This is a side question (and not at all an attempt to answer the question BL posed): How important is John Searle's work? Are people still working on speech act theory or is that just another dead end in the history of 20th century philosophy? My impression is that his reputation is somewhat inflated from all of his speaking engagements and NYRoB reviews. The Chinese room argument is a classic, but is there much more to his work than that?" I took it upon myself to answer that on LR. But here I'll tak...
17 comments
Read more