Under Cover of Science

American Legal-Economic Theory and the Quest for Objectivity

Under Cover of Science

Book Pages: 264 Illustrations: Published: March 2007

Economics, Law, Sociology > Social Theory

For more than two decades, the law and economics movement has been one of the most influential and controversial schools of thought in American jurisprudence. In this authoritative intellectual history, James R. Hackney Jr. situates the modern law and economics movement within the trajectory of American jurisprudence from the early days of the Republic to the present. Hackney is particularly interested in the claims of objectivity or empiricism asserted by proponents of law and economics. He argues that the incorporation of economic analysis into legal decision making is not an inherently objective enterprise. Rather, law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.

Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries. Thus Hackney’s narrative is a history not only of law and economics but also of select strands of philosophy and science. He traces forward from the seventeenth-century the interaction of legal thinking and economic analysis with ideas about the attainability of certitude. The principal legal-economic theories Hackney examines are those that emerged from classical legal thought, legal realism, law and neoclassical economics, and critical legal studies. He links these theories respectively to formalism, pragmatism, the analytic turn, and neopragmatism/postmodernism, and he explains how each of these schools of philosophical thought was influenced by specific scientific discoveries: Newtonian physics, Darwin’s theory of evolution, Einstein’s theories of relativity, and quantum mechanics. Under Cover of Science challenges claims that the contemporary law and economics movement is an objective endeavor by historicizing ideas about certitude and empiricism and their relation to legal-economic thought.


“The book is interesting, well written and well documented. It presents a vast panorama of ideas and theories, thinkers and scholars. Hackney discusses almost all the streams of thought in philosophy, economics, legal theory and science in Western culture since the 17th century. And the list of authors and theories is impressive. . . . The book is also written for a broad audience. It deals with eighteenth century political economy, nineteenth century biology, and twentieth century physics, but remains accessible.” — Alain Marciano, Constitutional Political Economy

"Under Cover of Science is well written and Hackney draws important connections between writings from different disciplines. . . . [T]he book provides an important overview of the relationship between science, economics, and law." — Dalia Tsuk, Law and History Review

Under Cover of Science fills a genuine gap in the literature by providing a thorough overview of the relationship between developments in scientific thought and developments in legal thought. That there is a relationship has been obvious to several generations of legal historians, and there are lots and lots of references and suggestions about how it might work. But until now no one that I know of has made a focused effort to lay it all out.” — Duncan Kennedy, Harvard Law School

Under Cover of Science is a sweeping intellectual history that relates the development of law and economics to science and its claims to objectivity. James R. Hackney Jr. ranges from Newton to Darwin to Einstein, and from classical economics to institutional economics to neoclassical economics. I cannot think of another book that so extensively explores the history of the interrelations of law and economics.” — Stephen M. Feldman, author of American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage

“James R. Hackney Jr. has written the definitive intellectual history of the origins of the law and economics movement. Weaving rich separate histories of legal and economic thought into broader changes in the governing premises of science and philosophy, Hackney has offered a powerful account of the rise of this influential school of thought.” — Morton Horwitz, Harvard Law School

“James R. Hackney Jr.’s book does a fine job of relating the evolution of jurisprudential thinking about one important area of conventional lawyers’ law, namely accident law, to the philosophical ‘surround,’ showing how changes in philosophy have influenced the evolution of legal thought, with specific reference to the now-dominant economic vein in that thought.” — Richard A. Posner, Judge, United States Seventh Circuit Court of Appeals, and Senior Lecturer, University of Chicago Law School


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Author/Editor Bios Back to Top

James R. Hackney Jr. is Professor of Law and Associate Dean for Academic Affairs at Northeastern University School of Law.

Table of Contents Back to Top
Acknowledgments ix

Prologue. The Structure of American Legal-Economic Theory xiii

1. Modern Science, Classical Thought, and the Birth of American Legal-Economic Theory 1

2. The Pragmatic Reconstruction of American Legal-Economic Theory 39

3. Neoclassicism and the Reprise of Formalism 81

4. The Dissolution of American Legal-Economic Theory 121

Epilogue. Gazing into the Future and Our Postmodern Times 157

Notes 175

Index 227
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Additional InformationBack to Top
Paper ISBN: 978-0-8223-3998-4 / Cloth ISBN: 978-0-8223-3981-6
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