Regulating Toxic Substances: A Philosophy of Science and the Law (Environmental Ethics and Science Policy Series)

Book Description

The proliferation of chemical substances in commerce poses scientific and philosophical problems. The scientific challenge is to develop data, methodologies, and techniques for identifying and assessing toxic substances before they cause harm to human beings and the environment. The philosophical problem is how much scientific information we should demand for this task consistent with other social goals we might have. In this book, Cranor utilizes material from ethics, philosophy of law, epidemiology, tort law, regulatory law, and risk assessment, to argue that the scientific evidential standards used in tort law and administrative law to control toxics ought to be evaluated with the purposes of the law in mind. Demanding too much for this purpose will slow the evaluation and lead to an excess of toxic substances left unidentified and unassessed, thus leaving the public at risk. Demanding too little may impose other costs. An appropriate balance between these social concerns must be found. Justice requires we use evidentiary standards more appropriate to the legal institutions in question and resist the temptation to demand the most intensive scientific evaluation of each substance subject to legal action.

Customer Reviews:

Regulating Toxic Substances: A Philosophy of Science and the Law.......2007-07-25

Regulating Toxic Substances: A Philosophy of Science and the Law provides a sophisticated and educational analysis of the complexities associated with regulating, assessing and conceptualizing toxic substances. Cranor does an impressive job at dissecting and disentangling the perplexing relationship between scientific risk assessment analysis as it pertains to Tort law, regulatory agencies and their epistemic and philosophical considerations. Theories of distribution and variants of Rawls's concept of Utilitarianism provide an atypical way of conceptualizing ethical justifications for the regulation of carcinogens and other toxic substances. The universal consideration taken by Cranor is the relationship between scientific assessment of toxic substances and public-healthcare policy efficiency. Of particular value, the last four appendices discuss the theoretic and scientific cancer potency estimates in the California Department of Health Sciences (CDHS) and the Environmental Protection Agency (EPA). Models of risk act as a function of Alpha and Beta values, statutes authorizing the regulation of carcinogens, and derivation of TD50 (tumorigenic dose) potency values. Regulating Toxic Substances: A Philosophy of Science and the Law will be best suited for those who are interested in the toxic Tort litigation and familiar with moderate to advanced statistic models of risk assessment and public-healthcare policy. Clanor puts together a cohesive evaluation of the synergetic relationship between toxic substances, policy and scientific method.

Legal Blame: How Jurors Think and Talk About Accidents (Law & Public Policy - Psychology & the Social Sciences)

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Biased Reviews
"Total Justice": The Key to Unlocking Jurors' Minds
Everyone Should Read This!

Legal Blame: How Jurors Think and Talk About Accidents (Law & Public Policy - Psychology & the Social Sciences)
Neal Feigenson
Manufacturer: American Psychological Association (APA)
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Binding: Paperback

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ASIN: 155798834X

Customer Reviews:

Biased Reviews.......2003-03-17

I think it unfortunate that a relative and a former student provide two glowing, 5 star reviews of this work. Buyer beware.

"Total Justice": The Key to Unlocking Jurors' Minds.......2000-08-07

At the beginning of this review, I need to disclose my bias: I have known Neal Feigenson for nearly 15 years: He was on the faculty at the law school which I attended, and I consider him a friend, as well as a mentor of sorts. Although I candidly concede, therefore, that I cannot be entirely objective about anything written by Professor Feigenson, I am confident that, by any standard, this is a marvelously intelligent and incisive book at the intersection of law and social psychology.

Torts is taught in the first year of law school. The black- letter law - those legal rules which must be learned - could fit on an index card. Nevertheless, the concept of negligence, which is the most important topic in torts, and its application to cases ranging from automobile collisions to medical malpractice, is very difficult. In jury trials, principles of negligence are applied by lay jurors selected precisely because they know little or nothing about law. That sounds like a recipe for farce, if not disaster, but it has evolved in Anglo-American law over a period of nearly 1,000 years. As a result, Professor Feigenson's effort to explain how jurors comprehend, interpret, and apply the rules of legal blame is very important. According to Professor Feigenson:: "Legal blaming is multidimensional: It springs from common sense and is also shaped by legal rules, expert rationales, and the facts of the individual case." The essence of Feigenson thesis is: "If there is any overarching pattern in [complex lay decision making] it is that jurors try to achieve what I call total justice. They strive to square all accounts between the parties (even though the issues the law asks them to resolve may not be framed in those terms), to consider all information they deem relevant (even if the law tries to keep them from relying on some of it), to reach a decision that is correct as a whole (even if they reach it by blurring legally distinct questions), and to feel right about their decision (even though the law discourages them from using their emotions to decide). In Feigenson's view, "the more original and important that this book makes to the understanding of lay decision making" is to "examine how the words that advocates use to persuade jurors and the words jurors themselves use to explain their decisions in several accident cases reflect the social psychology of total justice." In the introduction, Professor Feigenson makes these important points: "A very small portion of all accidental injuries, about 1 in 10, results in claims for compensation of any sort, and only a fraction of these lead to lawsuits;" and "Of all tort cases filed, about 5% or less are resolved by verdict at trial." Later he provides this interesting statistic. "[P]laintiffs win only a little more than half of tort cases tried to juries: over 60% for auto accidents, about 40% for products liability, and about 30% of medical malpractice." I find that surprising: My experience is that most strong plaintiffs' cases settle, so I might have expected the percentage of plaintiffs' verdicts to be lower. In addition, for reasons not clear to me, slip-and-fall cases are not included; they are notoriously difficult to win and, had they been factored in, the rate of plaintiffs' victories would have decreased. According to Professor Feigenson, he seeks to "shed light not just on outcomes (of lay decision making) but on how people get to those outcomes." According to Feigenson, "[t]hree general features characterize lay judgment when it is applied to" accident cases: (1) Jurors tend to conceive of accidents as melodramas; (2) Juror's common sense about accidents is full of contradictions; and (3) Jurors strive "to give total justice." Feigenson writes: "By `total justice,' I mean that jurors are more concerned with making things come out right than with strictly following the relevant legal rules." One of Professor Feigenson's most important observations is that "social psychology suggests that jurors may tend to conceive of accidents as melodramas." He defines "melodrama" as "a narrative in which (a) events such as accidents, are caused by individual human agency; (b) the acts of individuals are explicable in terms of their character; (c) the agents involved in the accident can be divided into `good guys' and `bad guys'; (d) the focus of the narrative is the accident victim and his or her suffering; and (e) the good guy wins (at trial) and the bad guy gets his or her comeuppance." According to Feigenson: "People's preferences for simple, indeed monocausal, accounts of events points toward a melodramatic conception of accidents, in which one and only one party is to blame." However, he acknowledges limitations on the melodramatic conception of accidents. For instance, jurors "do not simply yield to the melodrama often offered by plaintiffs' attorneys," and "the plaintiff's lawyer may not construct the case primarily as a melodrama." Professor Feigenson devotes a couple of chapters to actual cases, and the information presented is intriguing, although probably not extensive enough to draw authoritative conclusions. There is, therefore, plenty of room for additional investigation. According to Feigenson: "The ideal way to learn how laypeople think and talk about blame and compensation when they are serving as jurors would be to listen to them deliberate. For the most part, however, observing or recording actual jury deliberations is prohibited." But litigants are increasingly taking advantage of various forms of alternative dispute resolution outside the courts, and this includes "private" jury trials. There is no reason, with the consent of the parties and attorneys, why deliberations in private jury trials could not be observed, recorded, and analyzed by properly-credentialed researchers.

In conclusion, this book is superb. Neal Feigenson is a gifted teacher, able to communicate complicated concepts clearly. I recommend Legal Blame both to trial lawyers seeking insights into how juries arrive at verdicts and to members of the general reading public who are interested in the inner workings of the most important proceeding in the civil justice system.

Everyone Should Read This!.......2000-06-29

Legal Blame is the best book I've ever read about how juries think. The author explains in simple, clear language the psychology of how and why jurors blame someone for an accident, and shows how that psychology is reflected in the words that lawyers use when they try to persuade juries as well as in the jurors' own words. The book makes it possible to get inside the jurors' heads as they decide these cases, and that makes it easier to understand why the jurors decided as they did, whether you agree with their decisions or not. The background chapters on the tort law system and the cognitive psychology, especially the psychology of emotions, were extremely clear (I'm not a lawyer or a psychologist, and I felt I understood all of it) and helpful. I feel that from now on I'll be a much more educated consumer of television and newspaper coverage of jury trials and the legal system.

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Causation in the Law
H. L. A. Hart , and Tony Honore
Manufacturer: Oxford University Press, USA
ProductGroup: Book
Binding: Paperback

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This new edition of the seminal 1959 work retains the original analysis of commonsense causal concepts, and includes hundreds of new decisions and a substantial preface in which criticisms are met and a rationale propounded for common-sense causal notions as an element in legal responsibility.

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Markets, Morals, and the Law
Jules Coleman
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The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Clarendon Law Lectures)

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Book Description

This collection of essays by one of America's leading legal theorists is unique in its scope: It shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics and political science. There are four sections in the book. The first offers a new version of legal positivism and an original theory of legal rights. The second section critically evaluates the economic approach to law, and the third considers the relationship of justice to liability for unintentional harms and to the practice of settling disputes rather than fully litigating them. Finally, Coleman explores formal social choice in democratic theory, the relationship between market behaviour and voting, and the view that morality itself, like law, is a solution of the problem of market failure. This book will be of cardinal importance to philosophers of law, legal theorists, political scientists, and economists.

Philosophy and the Law of Torts (Cambridge Studies in Philosophy and Law)

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Philosophy and the Law of Torts (Cambridge Studies in Philosophy and Law)

Manufacturer: Cambridge University Press
ProductGroup: Book
Binding: Hardcover

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ASIN: 0521622824

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When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law.

Philosophy of Private Law (Clarendon Law Series)

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Philosophy of Private Law (Clarendon Law Series)
William Lucy
Manufacturer: Oxford University Press, USA
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Binding: Paperback

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ASIN: 0198700687

Book Description

On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we contracted? In what sense are our torts and our breaches of contract 'wrongs'? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement. This book provides an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law. After outlining the realm of the philosophy of private law, the book divides into two. Part I examines the various components of liability responsibility in private law, including the notions of basic responsibility, conduct, causation and wrongfulness. Part II considers arguments purporting to show that private law does and should embody a conception of either distributive or corrective justice or some combination of the two. Throughout the book a number of distinctions - between conceptual and normative argument, between jurisprudential 'theory' and private law 'practice', between legal obligation and moral obligation - are analyzed, the aim being to give students an informed grasp of both the limits and possibilities of the philosophy of private law.

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Proximity, Levinas, And the Soul of Law
Desmond Manderson
Manufacturer: McGill-Queen's University Press
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Binding: Hardcover

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ASIN: 077353041X

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Proximity, Levinas, and the Soul of Law links the controversial ethical philosophy of Emmanuel Levinas and the common law legal tradition that has recently invigorated the idea of "the duty of care." Desmond Manderson argues that the ethicists and lawyers struggle with the same basic questions of why we should care for others and what responsibility really demands of us, using the same language of care, neighbourhood, and proximity. Without compromising the integrity of either Levinas' poetic evocations of our spirit or the law's dense descriptions of our society, Manderson's powerful rhetorical style and innovative argument bring the two into constructive dialogue. For the student of Levinas the author offers an understanding of the implications and difficulties involved in applying ethics to law - major issues in continental philosophy. For the student of law he provides a powerful new framework through which to reconceptualize duty of care, the law of negligence, and the nature of legal judgment itself - major issues in legal theory.

Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity

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Insightful, important, and very well-written
Narrow scope, shaky historical technique

Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity
James R. Hackney Jr. , and James R. Hackney Jr.
Manufacturer: Duke University Press
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Binding: Hardcover

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ASIN: 0822339811

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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 determinationsâparticularly regarding the distribution of wealthâunder 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.

Customer Reviews:

Insightful, important, and very well-written .......2007-08-04

Professor Hackney, who teaches torts, corporate law, and jurisprudence at Northeastern University School of Law in Boston, Massachusetts, is the author of several important articles on the relationship between law and science in legal theory. Prof. Hackney's prologue outlines the context of the project. Certain influential theorists have long used the rhetoric of science and claims of objectivity to maintain law's authority and promote their economic vision. Prof. Hackney implicitly questions these claims to objectivity. But his book does much more than that. Prof. Hackney's book examines the intellectual history of legal theory as it relates to economics and science, and draws some lessons about the future. While Prof. Hackney is particularly interested in examining claims to scientific authority in the context of accident law, his lens is much broader than that. This perceptive and wide-ranging book takes readers from U.S. legal theory before the Civil War all the way through to contemporary times. His tracing of the trajectory of legal-economic theory is an indispensable review of many influential legal thinkers both in law schools and in the courts. Its clarity makes it accessible to general readers interested in legal theory as well as legal academics and law students. In addition, Prof. Hackney insightfully links developments in science with developments in legal theory, particularly in the twentieth century. This excellent and erudite book is written in a lucid, engaging style and is an important addition to the library of anyone who is interested in the history of ideas relating to law, science, and economics.

Narrow scope, shaky historical technique.......2007-07-28

Open up a book with a title like "Economic analysis of XYZ law", and it's usually filled with graphs and differential equations. How did law come to this pass? What kind of authority are the authors "appropriating" by imitating physics and other sciences, or at least by imitating economists' imitations of those sciences? Where did the protagonists of the Law & Economics movement (L&E) come from? And most importantly, are judges really persuaded by this scientific-looking stuff?

James Hackney, Jr.'s (JH's) book aspires to be an intellectual history of the impact of legal economic thought on accident law, a branch of torts. The book's title is a barbed comment on the stance of the Chicago School of L&E, the L&E theorists that most conspicuously manifested a "quest for objectivity and scientific pretensions" (@ xiii). According to JH, Richard Posner and other Chicagoans too long pretended that there wasn't any need for L&E to address questions about the unequal distribution of income and wealth, and too long denied that they were expounding a "political philosophy." This polemical aspect of the book, expressed in a usually clear and expressive writing style that is much more comfortable to read than typical legal academic prose, is one of its more successful features. (I also tend to agree with JH's political stance vis-à-vis Judge Posner's politics.)

But since the book also aims to be an intellectual history (see Acknowledgments @ ix-xii), I was hoping to get at least a partial answer to my questions from reading it. Unfortunately, these hopes weren't fulfilled.

Partly this is my mistake: I didn't take JH's subtitle literally enough. The word "theory" really means theory. Aside from one 1905 US Supreme Court decision (Lochner v NY, which doesn't relate to accident law, BTW), you won't find any court decisions mentioned in this book. You also won't find any discussion of the role of judges, although O.W. Holmes, Judge Posner and JH's former torts professor Guido Calabresi (now also a Federal judge) are discussed in their roles as theorists. This book is mainly about controversies among law academics.

However, the book also has a number of problems with its execution as historical writing. Those will be my focus in the remainder of this rather long review. Roughly, my issues can be grouped under three main heads: (1) problematic choice of sources, (2) gaps in the chain of intellectual provenance, the "chain of intellectual title" that shows who was influenced by whom, and (3) anachronisms and other weaknesses in interpretation of sources.

1. CHOICE OF SOURCES

(A) JH relies only on a narrow selection of published works. He doesn't mention any archival research or interviews, nor is there any indication that interviews were sought but declined. Given that many of the key figures in this book are still alive, especially Posner and Calabresi, the omission of interviews in this intellectual history is surprising.

(B) The selection principle for primary sources is very unclear. E.g., after mentioning that "the principal influence" of the "analytic turn" in philosophy on legal economic theory, "can be traced to the Vienna Circle" (@81), JH proceeds to focus on a book by Oxford don A.J. Ayer, who was not a Vienna Circle member. No attempt is made to demonstrate the direct influence of this book on any L&E theorists. (To be fair, Vienna Circle member F.J. Hayek, who was an important factor in the early history of the Chicago School, is discussed later in a different context, albeit briefly and at times puzzlingly, as when a 1951 speech by Frank Knight is said "to foreshadow" Hayek's 1944 book, _The Road to Serfdom_ (@103).)

(C) Although the book proposes to analyze the impact of scientism in L&E, JH doesn't engage with a wealth of directly apposite secondary scholarship on the history of the uptake of mathematical and scientific metaphors by economics, the history of science and other pertinent topics. When I say it doesn't "engage with" them, I mean it doesn't refer to them at all, whether for support, to distinguish them or to refute them. Some of these sources include Philip Mirowski's _More Heat than Light_ (1989) and _Machine Dreams_ (2002) and Roy Weintraub's _How Economics Became a Mathematical Science_ (2002, from the same press as JH's book). Mirowski's books in particular are copiously documented and based on extensive archival research. JH also neglects the historiography of the concept of objectivity, as exemplified by T. Porter, M. Poovey, L. Daston, and others. I discuss some issues raised by these works for JH's analyses further below.

2. GAPS IN CHAIN OF PROVENANCE

To show how L&E pretended to be scientific, you need to establish at least one of these three logical chains of intellectual influence:

(i) L&E < < science
(ii) L&E < < law < < science, or
(iii) L&E < < economics < < science,

where I use "X <
(iv) split of L&E -> "institutional" L&E (= Calabresi/Good Guy L&E) + Chicago L&E (= Posner/Bad Guy L&E), and
(v) how Bad Guy L&E became scientistic, while Good Guy L&E didn't.

(BTW, of course I mean "guy" in a gender neutral way; however, all the theorists discussed by JH happen to be men.) Scientism means "privileging knowledge forms deemed scientific" (@xiv; see also the comment about Posner @ 108).

JH doesn't attempt to show linkage (i), and he bases (iv) on the dyads Chicago < < Coase (@105ff) and institutionalists < < Pigou (@96ff, 107), so I won't discuss these further. But he does attempt to demonstrate the rest, with varying degrees of success. I will focus on (ii) and (iii), and discuss (v) in the context of each.

(A) L&E < < law < < science

JH takes the linkage L&E < < law for granted, which seems reasonable; so let's see what he does with the anterior link, law < < science. In Chapter 1, JH asserts a link between Newton and Blackstone (and an even vaguer connection between Blackstone and Leibniz). As JH misses several opportunities to connect Blackstone to later thinkers (esp. Hayek concerning natural law and liberty), I won't dwell on this. Suffice it to say that JH fails to show that Blackstone's notions of "natural law" had any direct connection to Newton's physical theories instead of other notions of "natural law" floating around at the time (Selden, Grotius, Locke, et al.). Nor, aside from a broad quote from John Dewey (@18), does JH provide evidence for his assertion that Blackstone's "axiomatic" presentation of law was based on Newton (@16). Assuming it was indeed "axiomatic," couldn't that approach have been modeled on geometry, for example? A geometry-based approach had plenty of precedent, e.g. Spinoza. Better evidence (and more contemporary with Blackstone) for the Newton connection would have been helpful. See also section 3.A of this review.

In Chapters 2, 3 and 4, JH talks about the influence of the theories of, respectively, Darwin, Einstein and quantum mechanics (QM), which have "far-reaching philosophical implications," and which "forced intellectuals to reconsider deep-seated (but often-unspoken) beliefs about ways the world works" (@ xv-xvi). How convenient that they were unspoken - that liberates JH from any need to demonstrate explicit connections between thinkers. E.g., JH connects Darwin to "an eclipse of certainty" that begets pragmatism, which begets O.W. Holmes and N. Green, with their skepticism about strict causation in tort law (@49-56). Although this may sound plausible, JH doesn't support it with any specific references to Darwin in these men's writings, correspondence, etc.

His connections from relativity and QM to law are even more Zeitgeist-y and vaguely asserted. Relativity "re-established the supremacy of the view that science is in large part deductive and determinate" (@82), and "inspired confidence in the progress of the species under the comforting umbrella of science" (@85); while QM "marked the end of the 'quest for certainty' in physics" (@125). From JH's account, we are asked to believe that relativity and QM whiplashed intellectuals' world views twice within about 10, or at most 20, years; he doesn't cite any evidence for how quickly or slowly each of these ideas diffused outside of physics per se. And as with Darwinism, JH doesn't show any direct influence of the scientific theories on the education, writing, etc. of L&E theorists. So on the linkage of science to legal theory, he is satisfied with a level of explanation about as deep as a freshman lecture course on the history of Western thought.

Does JH use science to differentiate the two main L&E schools? Yes, through the literary device of discussing "determinate" relativity in the chapter about the rise of Bad Guy L&E, and "uncertain" QM in the chapter about the rise of Good Guy L&E. That QM had been around for 35 years by the time Chicagoan Coase published his social costs essay, and for more that 45 years by the time Posner published his first book, is never mentioned, much less addressed. And even if JH had proved that each school is influenced by a different branch of physics, this wouldn't explain why Chicago L&E is fonder of "scientific trappings" than its institutional cousin. Will looking at the linkage between science and economics help us understand this?

(B) L&E < < economics < < science

Let's start with economics < < science. In his chapter about Bad Guy L&E, JH tells us "Neoclassical economic thought ascends in an intellectual environment shaped by the philosophical implications of Einstein's theories" (@89). As far as I can tell, the most concrete case JH makes for this is that: (I) Einstein was influenced by Ernst Mach (@85), (II) the Vienna Circle was interested in Mach and Einstein (id.), (III) Hayek hung around the Vienna Circle and had studied Mach (@89), (IV) Hayek influenced neoclassical economics and the Chicago School. In other words, Einstein and Hayek had read some of the same books (maybe by German cowboy novelist Karl May too? Einstein was a fan). In fact, there is a further irony in using Hayek as a link to scientism, as mentioned below.

JH's claim for the importance of Einstein's theory for neoclassical economics (NCE) doesn't square with the research of Mirowski (1989), who exhaustively documented the explicit connections between NCE and a mid-19th Century version of thermodynamics - as in "equilibrium" and all those other notions that are taught in Econ 101. Contrary to JH's point, Mirowski's treatment of relativity theory and QM (in the context of their reducing the status of the "law" of energy conservation) shows how *divergent* the ideas of modern physics are from the formalism adopted by NCE (Mirowski 1989 @77-98). In addition, Mirowski (2002) and Weintraub (2002) document the connections between WWII operations research (OR) and the NCE program, as well as the influence of the Bourbaki school of mathematics on NCE. They don't rely on vague assertions of "intellectual environments", but on citations, correspondence, who studied with whom and who funded whom. The protagonists of Mirowski's and Weintraub's stories include Samuelson, Arrow, Debreu, and von Neumann, plus a cameo role for Milton Friedman, who was involved in OR during the war. JH doesn't mention any of these folks in his book, aside from a triple-play snide reference Friedman, Posner and Adam Smith (@140). His failure to engage with Mirowski, Weintraub and similar research, much of it put together with deep historiographical craft and scientific literacy, is a critical flaw in his account of the economics < < science linkage.

Unlike the accounts of Mirowski and Weintraub, JH's story doesn't illuminate how all those graphs and differential equations - "scientific trappings" - got into economics texts, much less Posner's. In his Bad Guy chapter, the economists JH discusses at most length are Hayek, Knight and Lionel Robbins.

OK, Hayek and Knight were directly connected to the Chicago School. However, Hayek's inclusion in this context is based solely on _The Road to Serfdom_. JH doesn't include any discussion of Hayek's anti-scientism writings such as _The Counter-Revolution of Science_ (1952). (See also, P. Mirowski, "Economics, Science and Knowledge: Polanyi versus Hayek" (1998), reprinted in Mirowski, _The Effortless Economy of Science?_ (Duke U Press 2004).) Hayek actually opposed economics' reliance on the methods of the physical sciences, because such reliance ignored human purposes. Hayek's view was that economics was making a political mistake by adopting a scientific point of view. To say the least, this complicates JH's reliance on Hayek; JH's failure to engage the 1952 book or related writings once again illustrates the limitations of the Great Books (a/k/a "historically significant exemplar" @81) method of intellectual history.

As for Knght, JH attaches significance to his assertion that economics "is the only one of the social sciences which has aspired to the distinction of an exact science" (quoted @ 100). But this is just an assertion of scientific status, not evidence of "trappings". Compare JH's account to that of Mercuro & Medema (M&M) in their survey of L&E, _Economics and the Law_: "Knight's interest and strength did not lie in the use of formal mathematical and quantitative tools, but rather in the economic way of thinking" (2d ed. 2007 @ 99; JH cites to the 1st ed. of M&M, in other contexts). This makes the scientism of the Bad Guys all the more mysterious.

As for Robbins, he made similar assertions of the scientific nature of economics in his _Essay on the Nature and Significance of Economic Science_ (1931) (discussed @94ff). But what was his connection to the Chicago School? Apparently that he taught at the London School of Economics when Hayek was there - but according to JH, Hayek seems to have influenced Robbins, rather than the other way round (@ 203n64). JH makes many protestations about the importance of Robbins's book, including that one E.J. Burtt, Jr. viewed it (in 1972) as the "'clearest expression' of the twentieth-century view of economics as 'pure science' and as a 'highly influential work'"(id.). But that doesn't mean Robbins's book instantiated the science - only that it arrogated the status of science to economics. Neither M&M nor Weintraub mention this "influential work" at all.

Two years before E.J. Burtt wrote his encomium of Robbins, some Swedes wrote this about someone else: "Generally speaking, [his] contribution has been that, more than any other contemporary economist, he has contributed to raising the general analytical and methodological level in economic science." The authors were the bankers who give out what we lazy folks call the Nobel Prize in Economics, and they were describing Paul Samuelson (second person to receive it). Actually, Samuelson really did try to combine QM with economic theory, in an explicit mathematical way (see detailed description in Mirowski 1989 @ 378-386). If I could nominate an "influential work" in economics, near the top of my list would be Samuelson's introductory textbook (1st ed. 1947), which has trained generations of economists, lawyers and everyone else. But as already noted, JH is mum about him. Why? Because his politics don't fit into the Bad Guy libertarian paradigm? Because most of his work (other than about public goods) is outside the tunnel vision of L&E theorists? Maybe it's hard for them to see Samuelson's contribution because they're standing on it.

How does JH see the L&E < < economics link? We have the connection of Hayek to Chicago, and a bunch of protestations by Chicago & LSE folks about economics being scientific, but anything more? Coase and Posner were at Chicago. But here is a curious thing about this intellectual history: it doesn't contain any description of the biography, education, personality or Bildung of L&E's most influential practitioner. Who put the bee in Posner's bonnet about all this economics stuff? How did he become L&E's poster boy? He didn't go to school at Chicago, so how did he wind up there? And where did Posner first learn about scientific trappings - from Samuelson's textbook, or somewhere else? We are never told. And that is a darn shame.

Maybe I'm being unfair. Couldn't "under cover of science" merely refer to the rationalizations that Posner et al. employed to pretend that they were being "objective" and apolitical? Of course. In that case, it would be enough for JH to show that Knight, Posner et al. merely asserted a scientific basis for their positions, and then to show that they weren't in fact "objective" or apolitical. But if that's all JH wanted to talk about, why drag in Newton and Einstein and all the rest?

3. ANACHRONISMS &C.

(A) Paraphrasing Blackstone's writings on the study of law (Commentaries I. 1), JH says "A university education was necessary for future lawyers to understand the scientific [sic] method. Practicing lawyers were not only to be legal practitioners but legal scientists (theorists). It was important to claim the mantle, the cover, of science, because in the modern world science provided a basis for legitimacy" (@17). He offers no evidence for this "important[ce]" in the 18th Century - a time when theologians and authors were also respected; but I want to focus on textual matters.

I read - and text-searched - Blackstone I.1 after reading JH. None of the phrases "scientist," "scientific method" or "theorist" appear there. The word "science" appears often - but in Blackstone's day the word's meanings included branches of learning that encompass all the liberal arts (see New Shorter Oxford English Dictionary @ 2717). It's clear that he used the word in this flexible context; Blackstone also quotes (@ p. 16 of Avalon edition) a comment of from 15th Century lawyer Sir John Fortescue referring to the common law as "that science" - this more than 200 years before Newton. Moreover, the phrase "scientifical method" does appear in Blackstone (@p.34 of Avalon edition); NSOED's meanings of "scientifical" include "designed for the furthering of knowledge" (its most likely meaning in this context), rather than the Baconian empirical method. In the face of all this ambiguity, JH has the burden to show that Blackstone's specific words had the meanings JH imputes to them. Sensitivity to what words meant at the time they were used is the burden of any historian. It is not carried in this book.

(B) Similarly, JH mentions for Blackstone "[t]he scientific gloss was key to putting forth the appearance of objectivity for the Commentaries and the claims to legitimacy for English law" (@17). What does "objectivity" mean here? Does it mean the "objectivity" that was associated with science in the 20th Century? As, e.g., T. Porter shows in his book _Trust in Numbers_ (1994), as late as the 19th Century, professional judgment was prized more highly than depersonalized quantitation. Or maybe "objectivity" means "nonpolitical adjudication" (@xiv)? According to Porter, it was more likely judges who leant their prestige to science than the other way around (see, e.g., Porter @ 227).

(C) I could go on, but I'll close with one more observation: JH often interpolates his own words into those of other authors, but these interpolations are often anachronistic, more confusing than helpful, or both. "Theorists" above is one example, another is his interpolation of "efficiency" into a comment of Calabresi's as an explanatory gloss on "avoidance of waste" (@139). So is avoidance of waste what he means when he says of Hayek's views of property that "Efficiency was the ultimate criterion" (@90)? Or does he mean Pareto efficiency? Kaldor-Hicks efficiency? Something else? We'll never know: aside from that solitary parenthetical aside, "efficiency" is never defined in the book.

CONCLUSION

JH relates that a professional colleague and friend told him that "you become an intellectual historian by doing intellectual history" (@ x). In retrospect, that well-intentioned advice was at best way too simplistic. Lawyers and economists are indeed like physicists, in that they (we, actually) seem to think they're qualified in anyone else's intellectual field too, as long as it isn't a legal specialty outside our own (could get sued if we mess up). In fact, historiography is a profession too, and there's a lot to be learned from the pros. JH's heart seems to be in the right place, and he can express himself more directly than most law professors, so I wish him good luck in a subsequent attempt. He writes vigorously enough that I'd also encourage him to aim for a broader readership. But I hope he'll roll up his sleeves and try to do it right next time.

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Great collection
An excellent book
torts attorneys, take note

Philosophical Foundations of Tort Law

Manufacturer: Oxford University Press, USA
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Binding: Paperback

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Foundations of Tort Law
The Idea of Private Law
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ASIN: 0198265794

Book Description

This exceptional collection of twenty-two essays on the philosophical fundamentals of tort law assembles many of the world's leading commentators on this particularly fascinating conjunction of law and philosophy. The contributions range broadly, from inquiries into how tort law derives from Aristotle, Aquinas, and Kant to the latest economic and rights-based theories of legal reponsibility. This is truly a multi-national production, with contributions from several distinguished Oxford scholars of law and philosophy and many prominent scholars from the United States, Canada, and Israel. A provocative closing essay by one of the world's leading moral philosophers illuminates how tort law enables philosophers to observe the abstract theories of their discipline put to the concrete test in the legal resolution of real-world controversies based on principles of right and wrong.

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Great collection.......2000-12-19

I bought a whole stack of books on law and philosophy during the several months before I actually started law school (in fall 2000, at the age of 37). Most of them were just for "personal use"; as you can tell from my other reviews, I have a longstanding interest in philosophy anyway. But I waited until I completed a semester before reviewing them, so that I could plug the ones I found most useful.

This is one of them. There are nineteen essays in this volume, all by heavy hitters among today's legal theorists. Almost every single essay is about the philosophical foundations -- or lack thereof -- of the concepts of tort law. And almost every one of them is extremely helpful in understanding the rationale(s), if any, behind these concepts. (Wanna know what a "necessary element of a sufficient set" is, and what it has to do with the legal concept of causation? See Tony Honore's essay. Wanna know what intent has to do with torts? Check out John Finnis's piece.)

Now, I'm not saying you _need_ this book as a first-year law student. You don't. But if you have a background or an interest in philosophy, it will be of tremendous help to you -- both as a series of discourses that elaborate critically on the fundamentals you'll be studying in class, and as an introduction to the current crop of legal scholars. If you like this stuff, you'll want to go on to, e.g., John Finnis's _Natural Law and Natural Rights_, or Jules Coleman's _Markets, Morals and the Law_ and _Risks and Wrongs_, or . . .

And quite apart from the intrinsic interest of the material itself, if your torts professor, like mine, is interested in public-policy issues, you'll find this collection extremely handy. It _may_ even help you eke out a few extra exam points (though I don't know yet whether it did so for me).

(A valuable bonus for all you law-and-economics watchers: Richard Posner has an essay in here in which he admits the justice of most major criticisms of his outlook -- but says he doesn't care because he no longer has any confidence in systematic moral theories anyway. His retreat to pragmatism is unsurprising; Richard Wright has two brilliant pieces in here that, among other things, pretty much demolish the foundations of L&E. Wright's critique of the much-abused "Hand formula" alone is priceless.)

By the way, the _other_ book I found very useful (though expensive) was _Liability and Responsibility_, edited by Frey and Morris. That volume complements this one pretty well.

An excellent book.......2000-10-29

In my view, it's the best compilation about philosophy matters about tort law. It seems to me that this book includes interesting works such as : "The Practice of Corrective Justice" by Coleman; Wealth Maximization and Tort Law.." by Posner; Right, justice and tort law by Wright; Intention in tort law by Finnis, The basis for excluding liability for economic loss in tort law, by Benson; Necessary and sufficient conditions in tort law by Honoré; Contributory negligence.. by Simons; Risk, harm and responsibility by Perry, and so on. Without the slightest doubt if you like the tort law, you should have it.

torts attorneys, take note.......2000-10-13

Very good. The numerous essays included provide torts attorney (as well as the otherwise interested) a good opportunity to sit back, relax, and rediscover the many and fascinating issues which underlie his industry. As much as in any other field of law, plaintiffs' attorneys (and also the defense bar) focus their attentions to what the law is, to the neglect of why it came to be that way and how it ought to be. Read this to return to your philosphically concerned earlier days. Leave your procedure-dominated worklife behind for a moment and examine again the central questions, more deeply than when studying the casebook: what is agency? responsibility? what role punishment in tort law? to focus on rights or strictly economic considerations? is there room for principle in tort law? A convenient opportunity also to visit or revisit the legal theories, as focussed upon tort, of such important legal theorists as Richard Posner and Jules Coleman, among others. In the end, in your daily life you'll revert to the the law as it is-but once again you'll possess the intellectual grist to ask, Is there or might there be a coherent theory behind this important field of law, or is the practice of tort litigation merely a compromise, worked out over the years, patched together out of the various initially principled approaches?

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Regulating Law

Manufacturer: Oxford University Press, USA
ProductGroup: Book
Binding: Hardcover

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ASIN: 0199264074

Book Description

Regulating Law explores how the goals and policies of the new regulatory state are fundamentally reshaping jurisprudence in the domains of public law, private law, and the regulation of work and business. Fourteen areas of the core legal curriculum are reassessed from the standpoint of the impact of regulation on mainstream legal doctrine. The volume examines the collision of regulation by law with regulation by other means and provides an innovative regulatory perspective for the whole of law. To date, regulatory scholarship has mainly been applied to specific legislative programs and/or agencies for the social and economic regulation of business. In this volume, a cast of internationally renowned legal scholars each apply a 'regulatory perspective' to their own area of law. Their contributions provide a rich analysis of the limits and potential of legal doctrine as an instrument of control both in regulatory settings, and in settings traditionally immune from regulatory analysis. The result is an examination of the regulation of the doctrines of law itself, and of the way in which law regulates other forms of regulation and social ordering- law as subject and object of regulation.

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