Tuesday, January 17, 2006

Law School Acquisition, part n

So I'm reading all this legal, scholarly, and legal-scholarly argumentation about so-called Intellectual Property, a phrase I'm beginning to dislike, and I'm starting to think I should have studied economics, because every single argument is couched in economic terms, and I have a hard time following. First of all, because I'm not familiar with the jargon, but secondly because I have a hard time believing that economics is the best (let alone the only) framework for considering much of anything - it's an interesting way of looking at lots of things, but as Fredric Brown said, "One may look at anything as anything else, and what does it get you but a headache."

One problem may be that economics, which should be descriptive, has become largely prescriptive. In other words, people who should really know better are framing theories based on intuition and wishful thinking, in hopes that their theories will become the basis of policy. Imagine if a physicist were to say, for instance,
The most desirable outcome would be for water to flow up-hill, and under this theoretical framework, that will occur. Therefore society should adopt this theoretical framework.
Imagine further that society did adopt that theoretical framework. We might, eventually, run into trouble... depending on how tenaciously we clung to our theories. (The federal deficit is currently at... how much?)

But policy and politics aside, the problem I am finding with the abstract scholarly arguments may be their exclusive reliance on economic analysis per se. Absent any other framework, I suppose economics usefully fills a void; but really, are there not other frameworks that can supply the rigor that the law requires?

I think that is the crux of the problem: if you are telling a story, you must have a language that allows you to make coherent statements. Anything else is just opinion. Economics is a self-referential framework, the use of which forces conclusions too often antithetical to human values and sustainable systems. (As Edward Abbey famously observed, apropos one of the fundamental and all-but-unexamined tenets of the economics-based view of society, "Growth for growth's sake is the ideology of the cancer cell.")

So what else do we have, people?


At 6:34 PM, Blogger MT said...

Fed judge Richard Posner is famous for rationalizing and making law on the basis of economic analysis. A treatise he wrote in (I think) '72 gets lots of citing. But this is just one school. Traditional judging I suppose might be called humanist or moralist. I don't know what it's actually called, but it's not hard to imagine how a judge might opine without recourse to economics. "That behavior is wrong. Beautiful, righteous behavior is just like that English court in 1522 said. You lose. Next!" It's moral turtles all the way down in law.


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