ACKERMAN Law Economics Legal Culture

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Duke University School of Law

Law, Economics, and the Problem of Legal CultureAuthor(s): Bruce A. AckermanReviewed work(s):Source: Duke Law Journal, Vol. 1986, No. 6 (Dec., 1986), pp. 929-947Published by: Duke University School of LawStable URL: http://www.jstor.org/stable/1372624 .

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930 DUKE LAWJOURNAL [Vol. 1986:929believe hateconomicanalysisoughtto playa pervasive,but not an all-important,role in legal discourse.Theirmain task is to integrate hedistinctivegrammar f lawandeconomics ntotraditionalormsof legaldiscourse,producinga richerconceptionof appropriateegalargument.Althoughthis complexbusiness s goingon in manyplaces,I thinkitsspiritualhomehas beenthe Yale LawSchool.Now I myself am a weak lawyer-economist.However weak orstrong they may be, all lawyer-economistsmust confrontthe doubts,anxieties,and oppositionof their fellow legal practitioners.After all,lawyersandjudgeshave been arguingwith one anotherfor centuries.During histime,not a single awyerhassought o vindicate hemeritsofhiscaseby explainingo ajudgethat"thepointof tort law is to internal-ize externalities,"'r that"weshouldelaborate he lawof contractwiththe aid of the theoryof moralhazard,"2r that "weshouldunderstandthe SupremeCourt's latest opinionwith the aid of Kenneth Arrow'sGeneralImpossibilityTheorem."3Of course,traditionalawyershavesometimestaken economicfactorsinto account,but they have neverthought t necessaryo developanelaborate echnicalapparatuso assessthese factors' egal significance. n contrast, he newmovement eemstobeuncommonly deptat manufacturingargon-to thepointwhere ead-ing lawjournalsmay becomeutterlyunintelligibleo long-timepracti-tionerswho hadnaivelysupposed hattheywerecapableof reading heHarvardLaw Reviewwithoutprofessional ssistance.Moredisturbingstill, the new jargonseemsto be penetrating n increasingnumberofdecisionmakingenterswhere awis spoken n theUnitedStates-courtsas wellasagencies,egislatures s wellas the executivebranch. Forgoodor ill, powerholders ctually eem to be impressed yall this talk of mul-tiple regression nalysisandParetooptimality!Not, mindyou, that the legaltraditionhas been averse o technicaljargonduringthe milleniaof law-talk hat antedated he discoveriesofGuidoCalabresindRonaldCoase nthe 1960's.4 Only t was a differentjargon;and the simplefactof differencewouldbe enoughto account orthe vast professionalanxietygeneratedby law and economics. Quitebluntly, he newmovement hreatens raditionalawyerswithtechnolog-ical obsolescence:How preciselydo they proposeto respondon that

1. See, e.g., G. CALABRESI, THE COSTS OF ACCIDENTS 143-50 (1970).2. See, e.g., K. ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY AND PUBLIC

POLICY 14-15 (1986).3. See, e.g., Easterbrook, Ways of Criticizing The Court, 95 HARV. L. REV. 802, 813-32(1982).4. Calabresi,Some Thoughtson Risk Distribution and the Law of Torts, 70 YALEL.J. 499(1961); Coase, The Problemof Social Cost, 3 J.L. & ECON.1 (1960).


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Vol. 1986:929] LAWANDECONOMICS 931dreaddaywhentheyconfronta regression nalysis hatpurportso iden-tify their client as the partywho has wrongfully ailedto "internalizeexternalities"?Thisquestions no laughingmatter n a professionwhosestockandtrade is persuasiveargument.If traditionalists annot master the newjargonthatpowerholdersindmeaningful,heywillbe displacedby law-yer-economistswho do not labor under a similardisability. Yet, forthoseof us who can afford o viewthe mattermoredispassionately,hejargonof the lawyer-economistaises a different hallenge:Does thisnewwaveof neologismreflect omedeeperchange n the wayAmericanlawyers alk and thinkabout ustice?Or is it a superficialinguistic hift,signifyingnothingmorethananother urn n theendlesswheelof legalis-tic mumbo-jumbo?Given the legalsystem'saddiction ojargon, he mumbo-jumbo y-pothesisshould not be casuallydismissed. To give it some precision,considerthe possibility hat the neologismsgeneratedby law and eco-nomicsare produced hrougha simpleprocessof codeddisplacement.Suppose,for example,we studied the way a traditionalawyeruses atraditional erm(T-term)-say, "proximate ausation"-and comparedit with the way a lawyer-economist ses one of his neologisms(N-term)-say, "cost-externalization."f the lawyer-economist ere to de-ploythe N-termpreciselyon thoseoccasionswhenthetraditionalist sesthe familiarT-term, he relationship etween he two termscould be ex-pressedbycompilinga simplecodebook.Bylookingupthe term"proxi-mate cause" in the book, our perplexed raditionalistwould find theprecisewordhe needed o functionpersuasivelywithin he N-lexicon. IfeachT-termcouldbe mappedonto a corresponding -term n thisway,thenewvocabulary dvancedbylawandeconomicswouldberevealed sa perfectlycodeddisplacement f traditionaldiscourse.5Such a discov-ery,of course,wouldtrivialize he newmovement:old winehasmerelybeenpoured nto newbottleswithoutanychange n spiritualcontent.Suppose,however, hatourcomparison f T-termsandN-termsdidnot revealthis pattern. Ideasthat could be expressedn a simpleanddirectway in one idiomrequired omplexcircumlocutionn the otherandvice versa. Moregenerally, uppose he T- andN-lexiconsorganizethe universeof legalproblemsalong verydifferentines,eachemphasiz-ing differentypesof facts andvaluesas significantn thejust resolutionof disputes. Given such contrastingpatterns,a codebook ranslation f

5. Of course, there is probablyno such thing as aperfectly coded displacementin which an N-Term functions as a substitute for the T-Term it displacesin each and every traditional use. The textis dealing with ideal types that hopefully clarify real world possibilities.


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932 DUKELAWJOURNAL [Vol. 1986:929individualT-termsontoindividualN-termswould serveonlyas a crude,and often grossly misleading,guide to the perplexedtraditionalist.Before he could operatepersuasivelywithinthe transformedegal cul-ture,it wouldno longerbe enough orthe traditionalisto turnto a sim-ple codebook. Instead,he would have to immersehimselfin the newconversationalepertoirehatallowedN-lawyerspersuasivelyo connectlegal phenomenaquiteunrelatedo one anotherunderthe T-system.Such wrenching changes in conversationalrepertoireoccur, ofcourse,much more rarelythan do coded displacements.Nonetheless,theydo occur. A notableexample s the destruction f the common awformsof actionduring he nineteenth entury.The cultural mplicationsof this transformation ould be lost if we simply mappedN-termsontothe T-terms hey displacedn codebook ashion. Althoughthis is obvi-ousenough n retrospect,6t is farmoredifficult o speculate bout uturetransformationsf the legalculture.Nonetheless,my own immersion nthe conversational niverseof the lawyer-economistonvincesme that asimilarculturalshiftmaybe in the making. If the movementdoes suc-ceedin reconstructinghe languageof Americanaw,Americanawyersof the next centurywill not merelybe substitutingbits of economicjargonfor coded traditional ounterparts;what is at stake,rather, s aproposal o transformhe basic conversationalepertoirehat Americanlawyersnow use to persuadeone another-and theirfellowcitizens-ofthejusticeof their clients'complaints.Giventhe centralplaceof lawindefining he termsof Americanpubliclife, this effortat culturalrecon-structionshouldprovokeseriousattentionevenfrompeoplewhose firstinstinct s to avoidquibblingawyerswheneverpossible.

At present,we have not gottenveryfar in analyzing he conversa-tional shifts that havegenerated uch pervasiveanxieties.Thus,by farthe greatest ontroversy as centeredaround he lawyer-economist'sp-pealsto "efficiency"s a wayof resolvingegaldisputes.'Although hisquestion s important,he movement's hallenge o traditionalegalcul-6. Unfortunately,we do not yet possess a searchingand comprehensiveaccount of this greattransformationof the nineteenthcentury. For glimpses, see F. MAITLAND, HE FORMSOFACTION

AT COMMON LAW (1936); G. WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY(1980); and Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALOL. REV. 205(1979).7. See, e.g., Coleman, Efficiency, Utility,and WealthMaximization, 8 HOFSTRA . REV. 509(1980); Dworkin, Is Wealth a Value?,9 J. LEGALSTUD. 191 (1980); Dworkin, Why Efficiency?, 8HOFSTRAL. REV. 563 (1980); Kronman, Wealth Maximization as a Normative Principle, 9 J.LEGAL TUD.227 (1980); Posner, The Valueof Wealth:A Comment on Dworkin and Kronman, 9 J.LEGAL TUD.243 (1980); Posner, TheEthical and Political Basis of the EfficiencyNorm in CommonLaw Adjudication, 8 HOFSTRA . REV. 487 (1980); Posner, Utilitarianism,Economics and LegalTheory, 8 J. LEGAL STUD. 103 (1979); Rizzo, The Mirage of Efficiency, 8 HOFSTRA L. REV. 641(1980).


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934 DUKELAWJOURNAL [Vol. 1986:929disagreements,both groups have managed to trivialize the challenge thatlaw and economics poses to the traditional conversational repertoire ofAmerican law. After working my way to a couple of dead ends, I shalltry to break the impasse by running an interdisciplinaryraid upon someneighboring departmentsof the university: Perhaps some busy group ofscholars has alreadydeveloped well-honed tools that will do justice to thecultural challenge of law and economics? Unfortunately, the results ofthis excursion are largely negative, though potentially empowering: ifAmerican lawyers are to put law and economics in its place, they willhave no choice but to think for themselves.

II.I shall begin my guide for the perplexed traditionalist with thoseChicagoans who have most assiduously sought to justify the ways of thelawyer-economist to their fellow lawyers. As good conservatives, theseapologists for the new learning have sought to console the traditionallawyer by minimizing the challenge the lawyer-economistposes to tradi-tional legal discourse. According to these Chicagoans, traditionalprivate

law is alreadyinstinct with an "implicit"economic logic.9 "All" that thelawyer-economistproposes to do is to make traditionalistsfully self-con-scious of the economic logic that has guided the law all along. If this isright, the traditionalist's opposition to the lawyer-economist's jargonwould seem short-sighted. At the very least, the victory of the new legalrhetoric would not lead lawyers to repudiatetheir common law heritage.At best, the conversationalrepertoireof the lawyer-economist would in-vite a deeper appreciationof the common law tradition and encourageitslegal revitalization.Much to their credit the Chicagoans have not been content to an-nounce the marriage of Economic Efficiency and the Common Law.They have done something far better. They have presentedan argumentthat explainshow such a remarkable iaison could have come about. Theseminal point, first made by George Priesto1 and Paul Rubin," has asolid core of common sense. Imagine that two people, A and B, findthemselves consideringwhether they should sue each other in a commonlaw court. If A persuadesthe court of the merits of his case, B will lose$5000. If, however, B persuades the court to adopt his proposed solu-tion, the court will announce an economically inefficient rule that will

9. For a descriptiveaccount that emphasizes the putative efficiencyof common law doctrine,see R. POSNER, ECONOMICANALYSIS OF LAW, 29-246 (3d ed. 1986).10. Priest, The Common Law Processand theSelectionof EfficientRules, 6 J. LEGAL TUD.65(1977).11. Rubin, Whyis the CommonLaw Efficient?,6 J. LEGALSTUD.51 (1977).


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936 DUKE LAWJOURNAL [Vol. 1986:929So much, then, for the first dead end. American law will not em-brace the Chicago ideal of economic efficiency through some "invisiblehand" process modeled on the economist's idea of perfect competition.If this ideal gains legal acceptance, it will be because lawyers and judgesconvince themselves that economic analysis makes sense as a way of ana-lyzing their legal problems. Before buying into the Chicago rhetoric,however, it will pay us to examine their shiny new product with care,alert to the subtle ways in which it blinds us-as every rhetorical tradi-tion must-to some parts of our legal reality by emphasizing others.In saying this, I am happy to find common ground with the Critical

Legal Studies movement, which has performed a noteworthy service indramatizing the importance of an ongoing critique of the existing formsof legal culture. My problem with some, though not all,13 of these self-proclaimed Critics is the superficial way in which they go about theircultural investigations. The Critics I have in mind have defended them-selves against the lawyer-economist by exhuming the least persuasiveele-ments of the American tradition of Legal Realism. On this extremeview, legal doctrine is an infinitely manipulableset of dogmas that law-yers andjudges can use to justify any outcome they happento want.14 Inemphasizing the indeterminacy of legal doctrine, our latter-day Realistsdo not restrict themselves to the notorious "hard case," in which legaldecisions are preceded by an agonized period of indecision. For thesecritics, there is no such thing as an "easy" case: all doctrine is infinitelymalleable. So far as they are concerned, the lawyer-economisthas com-mitted original sin, variously labeled "formalism"or "conceptualism."He actually believes that, at least some of the time, lawyers can say thatsome rules are better or worse than others, and that these argumentsmight actually have some impact on judges' decisions!Since this belief in doctrinal efficacy,according to the Critics, is ut-terly misconceived, the task is to expose the lawyer-economist for themystifierhe really is. Thus, there is a critical literaturethat tries to showthat the lawyer-economist'sanalytic kit bag never allows him to get any-common law, Posner is implicitly recognizing that his commitment to economics is drivinghim to amethodological deadend, and is suggestingthe need to undertake the course of reflection sketched inthis essay.13. The Criticaltendency I mean to criticize is roughly the one James Boyle calls "the subjec-tivist, personal, phenomenological strand" in his recent survey. See Boyle, The Politics of Reason:Critical Legal Theoryand Local Social Thought, 133 U. PA. L. REV. 685, 688 (1985). My ownapproach to cultural analysis has more in common with the "structuralist,impersonal, patternedstrand" that Boyle finds in many Critical writings-though how much more depends on particularwriters and writings.14. See, e.g., Tushnet,Followingthe Rules Laid Down: A Critiqueof lnterpretivismand NeutralPrinciples,96 HARV.L. REV. 781, 821-22 (1983).


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938 DUKE LAWJOURNAL [Vol. 1986:929gested,17 that we should use every means at our disposal to oppose therise of law and economics?

I don't see why. By hypothesis, our Critic has just shown us thatthe displacement of traditional legal rhetoric by law and economicsmerely involves a change of one shell game for another. Since lawyerscan manipulateeither shell game to get any result they want, it does notseem to matterwhich shell game they choose to play. To put the point ina way that is currently trendy in Critical circles, the super-Realist cri-tique deconstructs itself. If every legal rhetoric is radically indetermi-nate, then the adoption of law and economics could not do any moreharm than the adoption of any other legal rhetoric. It is only if law andeconomics does give a determinate shape to the character of persuasiveargument,it is only if lawyer-economistsdo tend to make more bad deci-sions than other lawyers, that we should be especially interested in criti-cizing the new movement. The clear-thinkingcritic must choose: eitherlegal culture is radically indeterminate or law and economics is a badthing, not both.But it would be a mistake to leave the super-Realists hoisted upontheir own fundamental contradiction. If we move beyond deconstruc-tion, we may be able to learnsomething very positive from their effortsatradical critique. So let us try to isolate the basic idea that drives theindeterminacythesis. As best I can see, it is the utterly unrealistic con-ception of human naturepresupposedby latter-dayRealists. At the bot-tom of the Critic's critique is an extraordinary image of the lawyer as acognitive superman. Before anybody can manipulatea legal rhetoric, hefirst must learn the prevailinglegal doctrines and find their secret weak-nesses and soft spots. This is not an easy task. It is far more common forlawyers and judges to be mastered by apparent doctrinal stability thanfor them to mastera legal rhetoric sufficientlyto manipulateit in creativeways. Insofar as they recognize these limitations of lawyerly capacity,however, the super-Realistsseem to consider them a form of "false con-sciousness"'s that might be rectifiedby liberating legal education.'19My own, contrasting, view of human nature derives from the writ-ings of people like HerbertSimon20 and CliffordGeertz.21 Lawyers, like

17. See, e.g., Horwitz, Law and Economics: Science or Politics?, 8 HOFSTRA . REV. 905(1980).18. For a provocative development of this theme, see Gabel, The Phenomenologyof Rights-Consciousnessand the Pact of the WithdrawnSelves, 62 TEX. L. REV. 1563 (1984).19. See D. KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A PO-

LEMIC AGAINST THE SYSTEM (1983).20. H. SIMON,MODELSOF MAN(1957).21. C. GEERTZ,LOCALKNOWLEDGE1983); C. GEERTZ,THE INTERPRETATIONFCUL-TURES1973).


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Vol. 1986:929] LAWANDECONOMICS 939all other homo sapiens, operate under severe cognitive limitations. Theyhave neither the time, nor the energy, nor the ability, to manipulateeveryaspect of the legal culture at will. Instead, their standard operating pro-cedures are shaped by the rhetorical schemes into which they have beensocialized. Rather than supposing that lawyers can be the perfect mas-ters of their legal culture, it is more rewardingto consider the differentways in which different legal cultures constrain lawyers and judges asthey argue about particulardisputes.We should reject, then, the super-Realist's critique of the lawyer-economist's "neoformalism"as itself based on an unrealistic conceptionof human nature. In saying this, I do not suggest that legal culture is theonly causally relevant factor in explaining legal decisions. Obviously, awhole range of other factors-political and economic, sociological andpsychological-play important roles. Even if legal culture accounted for"only" ten or twenty percent of the whole story, however, its contribu-tion would be worth studying for its own sake.

III.Having come to two dead ends, we can now make a bit of progress.If we, first, reject Chicago and assert that the lawyer-economist's newforms of argument do not merely restate traditional legal conclusions,and if we, second, rejectthe Critic's indeterminacythesis and assert thatthe lawyer-economist's proposal to reconstruct American law may wellyield differentlegal results, then we may at last formulate an interestingquestion: How would the assimilation of law and economics into thetraditional conversational repertoire of American law change legaloutcomes?This is an empirical question. It asks us to develop models of thelegal culture that might explain how a change in conversational reper-toire ultimately yields changes in legal outcomes. Once we begin to takethe legal culture seriously on the level of positive theory, it will not belong before we are also obliged to confront an obvious normative ques-tion: Would it be a good thing for American legal culture to be recon-structed in the manner proposed by the lawyer-economist?Although the answers we give to this question will be linked in com-plex ways to our empiricalmodels, I should emphasize that the two ques-tions are, in principle,quite distinct. And the same is true when we gazeinto the future and guess how the law and economics movement will farein the decades that lie ahead. Thus, it is perfectly possible to concludethat the lawyer-economist is trying to reconstruct legal discourse in athoroughly bad way, and yet believe that there are deep forces within


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940 DUKELAWJOURNAL [Vol. 1986:929American society that make him the likely victor over his traditionalistopponents. It is no less possible to come to an opposite, but equallygloomy, conclusion-and predict that, despite the great value of the law-yer-economist's proposal, it will be crushed by the forces of traditionwithin the legal culture. For the present, I am not interested in contrib-uting to either of these pessimistic visions or to some more hopeful imageof our legal future. It seems more useful to consider the extent to whichexisting conceptual tools allow the lawyer-economist to answer the fun-damental questions generated by his own proposal to reconstruct thelegal culture. It is here that we encounter a paradox. If the lawyer-economist hopes to answer the positive and normativequestions posed byhis very existence, he must himself transcend the limits of moderneconomics.

To understandwhy, begin by focusing on the empirical side of thematter. Quite obviously, it will be a tricky business to construct a modelthat, even in principle, is capable of predicting the legal consequences ofthe changes in conversational repertoire proposed by the lawyer-econo-mist. To make my point, however, it will only be necessary to considertwo threshold issues. It seems reasonablyobvious that, whatever else ourmodelbuildermust do, he must find a way to characterize, first, the tradi-tional conversational repertoire employed by American lawyers, and,second, the distinctive features of the novel rhetoric deployed by lawyer-economists. Until he can describe how the new conversationalrepertoirediffers from the old, our modelbuilder cannot even hope to understandthe lawyer-economist's potential impact on the traditional legal culture.Yet, given these threshold issues, we can begin to appreciatethe lim-ited utility of neoclassical economics in this particularmodelbuildingef-fort. The fact is that neoclassical economics takes an extremelyreductionist view of culture in general and conversation in particular.Indeed, it is no exaggerationto say that neoclassical economics has triedto show how much of the world we can explain without self-consciouslytaking into account the distinctive characteristics of human beings assymbol-usinganimals.22As a consequence, economists have little to con-tribute to the analysis of the ways lawyers have talked to one another inthe past or the ways lawyer-economistsmight talk to one another in thefuture.Consider, for example, the brief conversation that is presupposedwhenever supply and demand curves cross in perfect competition.Buyer:Are you willingto sell this widgetfor $100?Seller:Yup.

22. For an insightful account, see D. MCCLOSKEY,THE RHETORICOF ECONOMICS 1985).


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Vol. 1986:929] LAWAND ECONOMICS 941Buyer: Fine. Here'smy money.Seller:O.K. Here'sthe widget.This is a rather simple conversation, simpler by far than the ways in

which lawyers and judges normally talk to one another about legal dis-putes. Economists, however, have not tried to analyze the symbolicstructure of such simple conversations.23 More generally, they have noteven begun to question their reductionist approach to culture and com-munication. For example, a great deal of law and economics rightly con-cerns itself with the ways actors use legal forms in adapting to problemsposed by ignorance and uncertainty. In dealing with these issues, how-ever, analysts characteristicallyadopt models that ignore the distinctiveways in which human beings communicate with one another. The prob-lem of "searching" for a "bit" of information by talking to anotherhuman being is treated as if it were identical to the way we search for a"bit" of copper or some other physical object. This, to put it mildly, isan oversimplification.To correct a predictable misunderstanding, I hardly wish to con-demn the economics of information because of its reductionist treatmentof symbolic communication. The limits of the human mind absolutelyrequire every scientific endeavor to simplify certain aspects of reality inorder to investigate others with care. As a research strategy, the eco-nomics of imperfect information is one of the most fruitful sources ofinsight into the economics of law.24 However, like every other researchstrategy, it ultimately runs up against its self-imposed limits, one ofwhich is markedby the problembefore us. To understand the impact ofthe lawyer-economiston American legal culture, we simply must be ableto conceptualize conversationalrepertoires n a way that is far more com-plex than those presently used in economics.

IV.Well then, I can hear you say, if modern economics does not tell ushow the lawyer-economistwill affect the law, what disciplinecan tell us?Speakingabstractly,the answer is easy enough: we must look to thesciences of culture to explain how best to understand both traditional

legal culture and the ways in which it might be transformedby the law-23. For a rare work that does explore the symbolic dimension, see A. LEFF, SWINDLING ANDSELLING (1976).24. See, e.g., O. WILLIAMSON,THE ECONOMIC NSTITUTIONSOF CAPITALISM 1985); 0. WIL-LIAMSON,MARKETS AND HIERARCHIES(1975); Gordon & Kornhauser, Efficient Markets, CostlyInformation,and SecuritiesResearch, 60 N.Y.U. L. REV.761 (1985); Schwartz & Wilde, Interveningin Markets on the Basis of Imperfect Information: A Legal and EconomicAnalysis, 127 U. PA. L.REV. 630 (1979).


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942 DUKE LAWJOURNAL [Vol. 1986:929yer-economist's distinctive conversationalrepertoire. I categorically re-ject, therefore, the standard economist's condescending attitude towardother disciplines that do take seriously the deep problems that are gener-ated every time social meanings are exchanged through symbolicprocesses. Some of these disciplines are ostentatiously "humanistic"-looking to such diverse authors as Quine,25Gadamer,26or Derrida27 orillumination. Others are, if only by comparison with the first group,more scientistic in their methods, with practitionersin fields like anthro-pology,28 sociology,29and sociolinguistics.30 However alien their meth-ods may seem to the economist, these are the disciplines that lawyersmust consult if they hope to gain perspective on the potential contribu-tion the lawyer-economist offers to the development of American legalculture.

This is, of course, discouragingnews; it is no secret that the culturalsciences are in a state of crisis. Indeed, the surface confusion may be sodisheartening that we may too quickly succumb to counsels of despair.Professor Stanley Fish has championed such a view, arguing powerfullythat theoretical disputes about the nature of legal culture have absolutelyno utility for the thoughtful legal practitioner.31 According to Fish, thepracticing lawyer should look upon books of legal theory in the sameskeptical way that a would-be basketballplayer looks upon treatises thatteach him how to shoot a spheroid through a hoop. Just as a basketballplayer would be much better advised to watch the pros and get on thecourt and move the ball aroundhimself, so too should a would-be lawyerwatch and practice the conversational moves of his professional modelsas they throw the conversational ball around in the hopes of scoringpoints with judges, bureaucrats,and legislators. Theoryjust doesn't mat-ter; it's immersion in rhetorical practice that counts.

Now, surely, I do not want to reject Professor Fish's importantpoint. Immersion in the prevailing practice of argument is absolutelynecessaryfor any would-beprofessional. Nonetheless, ProfessorFish hasignored the special way in which the rise of law and economics makes25. See, e.g., W. QUINE,WORDANDOBJECT1960).26. See, e.g., H. GADAMER, RUTHANDMETHODG. Barden & J. Cumming trans. 1975).27. See,e.g., J. DERRIDA,FGRAMMATOLOGYG. Spivak rans.1976).28. See, e.g., C. GEERTZ, THE INTERPRETATIONOF CULTURES (1973); M. DOUGLAS, NATU-RAL SYMBOLS(1970); M. DOUGLAS, PURITY AND DANGER (1966).29. See, e.g., P. BERGER& T. LUCKMANN,HESOCIAL ONSTRUCTIONFREALITY1966);E. GOFFMAN, FRAME ANALYSIS (1974).30. See, e.g., B. BERNSTEIN, CLASS, CODES AND CONTROL (2d ed. 1974); V. VOLOSHINOV,MARXISM AND THE PHILOSOPHYOF LANGUAGE (1986).31. See,e.g.,Fish,Consequences,1 CRITICALNQUIRY33,438-39 1985);Fish,Fishv.Fiss,36 STAN.L. REV.1325,1347(1984).


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944 DUKELAWJOURNAL [Vol. 1986:929play a generation or two down the road, and to be impatient with criticswho fail to see that the very nature of the game is up for grabs.Let us suppose, however, that critics like Professor Fish choose tostay on the sidelines as other Americans think about, and struggle over,their legal future. Even as kibitzers, they may still play a useful, if ancil-lary, role in clarifying the nature of our legal present. I have no doubtthat an acute critic of today's legal culture could isolate many conversa-tional moves in which lawyers are creatingnew metaphors and analogiesby combining elements of the older common law tradition with the newlaw and economics and scoring legal points by making the equivalentof a"dunk shot with a hockey stick" or defending a legal goal by "kicking abasketball away from the goalie." Moreover, as relative outsiders, liter-ary critics like Professor Fish may well have an advantage over legalprofessionals in isolating these mixed metaphors and showing the rest ofus how they do their work of legal persuasion. Many well-trained law-yers have become so accustomed to runningon ice while making a lay-upthat they may barely notice that something funny is happening on theway to legal victory. It is not, then, merely a restless trendiness amonglegal academics that has recently led them to turn to literarycriticism asa source of insight into the nature of their legal predicament. If criticalsensibility preparesus for anything, it is an insightful description of theshattering consequences that follow when two rhetorical traditions col-lide and try to coexist with one another within a single interpretivecommunity.32

V.Yet, while critical descriptions of the present legal culture are im-portant, they can only serve as preliminariesto the ultimate normativequestion: How should American lawyers respond to the lawyer-econo-mist's invitation to reconstruct American law?Now this is a philosophical question-and one for which traditionalAnglophone jurisprudenceprovides us with surprisinglylittle assistance.This is because English-languagephilosophy of law is largely concernedwith external questions--questions that can be intelligently addressed

without a deep immersion in the rhetorical practice of any particularlegal culture. Consider, for example, the first question of English ana-lytic jurisprudence: What is law anyway? In proposing answers, philos-ophers do not generally suppose that they must immerse themselves in32. For my own efforts along these lines, see B. ACKERMAN,RIVATE ROPERTY NDTHECONSTITUTION1977); Ackerman, Four Questions or Legal Theory, in NoMos XXII: PROPERTY351 (J. Pennock & J. Chapman eds. 1980).


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Vol. 1986:929] LAWAND ECONOMICS 945the rhetorical tradition of American law, English law, or any legal cul-ture at all. Instead, a layman's acquaintance with legal phenomena issupposed to provide all the experience needed to judge the traditionaldispute, say, between positivists and natural lawyers.33A similar external perspective characterizes the rich jurisprudentialliteratureon "law and morality." In these studies, professional philoso-phers generally do not try to bring a deep and broad understandingof aparticular legal culture to bear on their subject;instead, they are contentto report, in a relatively summary fashion, a narrow range of legal doc-trines that concern their particular problem-problems like the suppres-sion of obscenity or the protection of privacy or the criminal punishmentof faultless conduct. Having done their legal duty, their discussionquickly proceeds to the main business at hand-the sustainedelaborationof the political and moral stakes raised by the legal doctrines in question.From all I can tell, moreover, this external tendency in the philosophicalliterature reflects the bias of standardjurisprudence courses, especiallythose taught in philosophy departments. The course I have in mind be-gins by asking "what is law," proceeds with a selection of problems in"law and morality,"and ends on yet another externaltheme, confrontingthe problemof civil disobedience and a citizen's prima facie obligation toobey the law. Although it is hard to predict classroom responseto Socra-tes' dialogue in the Crito, or Martin Luther King Jr.'s letter from a Bir-mingham jail, I suspect it does not often lead to an immersion in therhetorical particularitiesof Greek or American legal culture.In saying all this, I do not dispute the importance of externaljuris-prudence. Nor do I mean to suggest that there is absolutely nothingwritten of philosophical interest from an internalpoint of view. Hart andHonore's outstanding work, Causation n theLaw, 4 reveals a deep un-derstanding of the prevalent patterns of English legal rhetoric. On thisside of the Atlantic, Karl Llewellyn's Common Law Tradition: DecidingAppeals35 s anothersuggestive internal work, and one whose central dis-tinction between the Formal Style and the Grand Style has an obvious-if complex-relevance to the rhetoricaltransformationsgenerated by law

33. This is true, for example, of H.L.A. Hart's classic defense of positivism,see H. HART,THECONCEPT FLAW(1961). On a deeper level, however, Hart's book marks an important turningpoint. One of the book's innovations is its emphasis on the importance of the "internal"point ofview taken up by engaged participantsin an ongoing legal system. See id. at 85-88. Thus, Hart doesnot suppose that an externalobserver can successfullyidentify a system's "rule of recognition"with-out consulting the participants' nternalpracticeof legal argument. Id. at 99. By building the inter-nal point of view into the very definition of law, Hart's positivism invites the deeper internalinvestigations of the kind required by a philosophical treatmentof law and economics.34. H. HONORE & H. HART, CAUSATION IN THE LAW (2d ed. 1985).35. K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960).


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