What is It Like to Be a Beetle? The Timelessness Problem in Gilson's Value Creation Hypothesis
Jeffrey M. Lipshaw
Suffolk University Law School
March 7, 2014
UC Davis Business Law Journal, Forthcoming
Suffolk University Law School Research Paper 13-21
This is a contribution to the 2014 mini-symposium honoring the thirtieth anniversary of the publication of Ronald Gilson’s seminal article Value Creation by Business Lawyers. In it, he coined two powerful metaphors: that of lawyers as “transaction cost engineers” and as beetles studied by their entomologist brethren in the legal academy. As a former lawyer-beetle and a current academic-entomologist, I am quite sure that the transaction cost economics he used to explain value creation missed something important about the subjective and real world experience of being a lawyer-beetle. In this essay, I (a) summarize two different but significantly related critiques of theory, (i) the physicist Lee Smolin’s powerful argument for the unreality and therefore timelessness of algorithmic models of the universe – i.e., why physics as generally practiced is “physics in a box,” and (ii) the philosopher Alasdair MacIntyre’s controversial argument for the unreality of modern conceptions of utility, rights, and efficiency, (b) borrow from both critiques in order to understand the difficulties in transposing timeless economic and legal conceptions (“utility” and “rights,” respectively) to real transactions that occur in real time, (c) criticize the tendency of the legal profession, in both the academic and practicing arms, to teach and practice a scientific “law in a box,” and (d) suggest a vision of what it means for a wise business lawyer not to be so constrained.
Number of Pages in PDF File: 28
Keywords: transactional lawyering, value creation, law and economics, Smolin, MacIntyre, timelessness, objectivity, subjectivity, models, change, contracts
JEL Classification: K12, K22Accepted Paper Series
Date posted: July 23, 2013 ; Last revised: March 7, 2014
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