Neil Buchanan & Michael Dorf: How Law and Economics Mirrors Originalism and Textualism
Michael Ramsey
Neil H. Buchanan (University of Florida - Levin College of Law) and Michael C. Dorf (Cornell Law School) have posted A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism (106 Cornell Law Review, forthcoming) (74 pages) on SSRN. Here is the abstract:
Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, determinacy, and political neutrality, neither theory delivers on its promises. Economic efficiency, the lynchpin of L&E, is incoherent because it relies on typically hidden but ultimately normative assumptions about preferences that would exist in an impossible world without law. O&T as it has been refined in response to devastating criticisms of earlier versions is indistinguishable from ostensibly less determinate rivals like Living Constitutionalism and purposivism. Accordingly, conservatives use L&E and O&T to obscure the role of normative priors, perhaps even from themselves. Liberals could use the same techniques for different results but heretofore generally have not, instead mostly settling for counterpunching against charges of result-orientation.
The proposition that modern originalism "is indistinguishable from ostensibly less determinate rivals like Living Constitutionalism and purposivism" has become something of a staple criticism among anti-originalist academics. As someone who spends a good bit of time trying to figure out the original meaning, as opposed to the modern meaning, of various constitutional clauses, that seems to me not only wrong but kind of silly. The whole point of living constitutionalism is that it encourages interpreters to examine a range of considerations that simply aren't relevant to an originalist analysis. This is apparent in nonoriginalist scholarship on particular clauses, which addresses these considerations, and in originalist scholarship, which does not. (This, though, is a minor quibble that does not necessarily resolve the paper's interesting question about why there is not more intra-conservative debate on interpretive approaches).