Post-Realism, or the Jurisprudential Logic of Late Capitalism: A Socio-Legal Analysis of the Rise and Diffusion of Law and Economics

Law and Economics has been widely identified, by proponents and critics alike, as the most influential movement within legal scholarship over the past two decades or more. The emergence and growth of the Law and Economics movement coincides with a set of economic, political, and cultural developments representing a fundamental transformation of social relations on a global scale. The trends that others have identified as driving the rise of Law and Economics are encompassed within this broader transformation. Previous accounts, however, do not fully locate the movement within that historical-sociological context. Nor have they gone very far in tracing the diffusion of Law and Economics out of the academy and into the courtroom. This Article begins by developing a critical socio-legal account of Law and Economics as a constitutive element in a restructuring regime of capital accumulation and social regulation, identifying the socio-economic relations and interests that both give impetus to a neo-Liberal project of reconstituting capitalism and foster Law and Economics as a theory of law in harmony with that project. Noting the controversy over various programs that endeavor to inculcate Law and Economics among judges, the Article measures citations to Law and Economics scholarship in federal appellate judicial opinions, as a first step toward gauging the impact of Law and Economics on judicial decision-making. The data reveal that direct citation to Law and Economics scholarship, other than by judges who are themselves closely identified with the movement, has increased only slightly during the period of the movement\u27s rise. Further empirical research is suggested, to examine other, more indirect, ways that Law and Economics may be influential within legal practice. Such research will enhance the critical investigation of the Law and Economics movement in particular, and contribute to the socio-legal understanding of law as a constitutive element of society more generally