Beetles, Frogs, and Lawyers: The Scientific Demarcation Problem in the Gilson Theory of Value Creation

Abstract

Recently, Ronald Gilson described a transactional lawyer turned law professor as someone who was a beetle, but became an entomologist. This is not the first non-mammalian metaphor used by an economically inclined legal academic to demarcate those who study and those who are studied. As Richard Posner so colorfully explained rational actors as they appear to economists studying them objectively: "it would not be a solecism to speak of a rational frog." In this short essay, I suggest that both say something about the prevailing view of theorizing that is entitled to privileged epistemic status in the legal academy. Some economic explanations of the activities of beetles, frogs, and lawyers are entitled to this status, and some are not. I assess Professor Gilson's classic 1984 article on value creation by lawyers in terms of its implicit claims to (social) scientific knowledge, and conclude that it is not.

Keywords: transaction cost engineers, rational actor, law and economics, Gilson, philosophy of science, falsification, Popper, demarcation

JEL Classification: B21, K40