A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism

106 Cornell Law Review, Forthcoming

Cornell Legal Studies Research Paper No. 20-20

79 Pages Posted: 16 Mar 2020 Last revised: 21 May 2020

See all articles by Neil H. Buchanan

Neil H. Buchanan

University of Florida Levin College of Law

Michael C. Dorf

Cornell Law School

Date Written: 2020

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.

Keywords: law and economics, originalism, textualism, apolitical, L&E, O&T, political neutrality, constitutionalism, purposivism, economics, law,

Suggested Citation

Buchanan, Neil H. and Dorf, Michael C., A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism (2020). 106 Cornell Law Review, Forthcoming, Cornell Legal Studies Research Paper No. 20-20, Available at SSRN: https://ssrn.com/abstract=3553508 or http://dx.doi.org/10.2139/ssrn.3553508

Neil H. Buchanan (Contact Author)

University of Florida Levin College of Law ( email )

PO Box 357069
Gainesville, FL 32635
United States

Michael C. Dorf

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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