Law and economics theories are dominant because of a concerted push by conservative actors, not empirical reliability. Aff evidence should be viewed with strict scrutiny

(Martha, Prof. Emerita@BufflaoLaw, Law and Economics Against Capitalism BUFFALO Legal Studies Research Paper Series Paper No. 2020 – 009 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3815158 )

Examining the rise and fall of different approaches to law, prolific legal scholar Cass Sunstein asked, “[w]hy has Law and Economics had such staying power?”2 He describes both feminist legal theory and economic analysis of law as examples of how academic groups can create “informational cascades” where irrational influences of habit, reputational pressures, mass psychology, and emotional ties may lead academics to adopt bad ideas about law. 3 By assuming both feminism and law and economics deserve equivalent scrutiny for problems of “political correctness,” Sunstein’s analysis fails to consider whether the two approaches actually hold positions of similar power on the academic and political playing field. 4 A. Legal Theory in Political Economic Context Consistent with the law and economics orthodoxy, Sunstein’s behavioral explanation of how bad legal ideas can win unjustified influence does not take account of how the broader context of political, social, and economic power shapes behavior. Law and economics has received far more funding from private organizations outside of academia than any other contemporary school of legal thought. Moreover, those funders deliberately designed their investments as a strategy for transforming the politics of law. Omitting these dramatic differences from the picture obscures how the success of law and economics is related to feminism’s comparatively marginal position. Feminism will appear to be on shaky ground compared to law and economics if, like Sunstein, we assume that intellectual merit is mainly threatened by insufficient scholarly detachment from emotions or moral commitments. Proponents of orthodox law and economics have attributed its success to its distinctly neutral, scientific method of legal analysis, 5 apparently stripped of the contested politics, sentiment, and value judgments of other approaches. Although law and economics claims to depoliticize law, in contrast to legal feminism’s explicit focus on contesting power, the law and economics movement itself is steeped in a political and economic context of its own that deserves attention. Law and economics owes its influence to its receipt of vast resources from organizations working to oppose movements for equality and social justice. And although this influential legal theory makes self-interested material gain a dominant lens through which to evaluate law, it is striking that this lens has distinctly closed off analysis of the material special interests shaping its own theory, application, and impact. B. The Political Economics of Law and Economics As the most prominent organization leading the movement to reshape legal thought in the late twentieth century, the Olin Foundation spent over $68 million to develop and institutionalize the emerging approach known as law and economics. 6 The Foundation viewed this strategic investment in law and economics as its most significant and successful strategy for its success as a “venture capital fund for the conservative movement.”7 As its “premier project,” Olin provided the “financial and moral support” for specialized seminars attended by hundreds of U.S. law professors and thousands of judges (along with many other government officials and legal professions from around the world), with additional major funding from the Charles Koch Foundation, the Searle Freedom Trust, and major oil, insurance, pharmaceutical corporations with direct interests in judicial rulings. 8 A recent empirical study found that judges tend to rule more conservatively on a number of issues after attending these seminars. 9 Supplementing these seminars, Olin funding established law and economics centers within many U.S. law schools, 10 providing tens of millions of dollars for Olin programs at Harvard, Yale, and the University of Chicago, and many other schools.11 To further embed the approach in legal academia, Olin gave “a long string of six-figure gifts”12 solidified with ideological strings13 to transform George Mason University (recently renamed the Antonin Scalia Law School) into a specialized base for its law and economics approach. In addition, Olin collaborated with other major conservative foundations, industries, and wealthy individuals to develop an interconnected network of think tanks, law firms, and publications geared toward implementing and reinforcing the ideas, law reforms, and policy arguments generated by this newly influential academic approach. 14 This ecosystem cultivated core law and economics ideas as widely recognized, credible, and firmly established principles of sound thinking. In contrast, despite significant student and faculty interest, feminist legal theory has remained more at the institutional margins, with far fewer law school centers, fellowships, career pipelines, or well-funded and well-connected ties to policy institutions. 15 Though not exclusively targeting feminism, these institutional investments in law and economics were carefully designed to discredit support for egalitarian social change, especially targeting efforts to integrate economics with questions of race, gender, economic class, and power. In the early 1970s, a protest led by African-American students at Cornell University triggered arms manufacturer John M. Olin’s decision to transform his foundation into a leading producer of rightwing ideas building on his concerns that “socialist” policies of the New Deal and 1960s threatened “free enterprise” and capitalism.16 As Olin Foundation President William E. Simon explained, “the power to shape our civilization” should “reside in the free market.”1 Olin Foundation leaders chose law and economics as its primary project not out of academic interest, but rather for its strategic value in advancing and obscuring its right-wing political mission. 18 Olin’s Executive Director explained that “you couldn’t get into the law schools with programs targeted at constitutional law. . . . If you went in with constitutional law, you wouldn’t want Larry Tribe constitutional law, you’d want Bob Bork constitutional law. But you couldn’t go in and say that.”19 Law and economics “seems neutral but it isn’t in fact,” because it promotes a “philosophical thrust in the direction of free markets and limited government.”20 The Olin Foundation structured its academic law and economics funding to preserve overall alignment with its overarching ideological goals. 21 For example, when the AfricanAmerican law faculty director of Duke University’s Olin Center, Jerome M. Culp, Jr., commented on white supremacy in contemporary Supreme Court rulings, the Olin Foundation stopped funding the program, denying that the decision was directly related to the comment, but acknowledging it was motivated by disapproval of Culp’s “racial politics.”22 Further, the Olin Foundation worked closely with other politically motivated funders to link the law and economics message of an apolitical, optimizing market to a right-wing moral, cultural, and social mission explicitly embraced by their larger web of grantees. In particular, the think tank and law firm networks developed by Olin and its philanthropic allies promoted the idea that legal feminism illegitimately usurps the market’s superior protection of individual freedom, fundamental fairness, and societal well-being. For example, the Olin Foundation funded and shared leadership with the Center for Individual Rights,23 a nonprofit law firm focused on “economic liberty” that litigated the successful case to overturn a portion of the Violence against Women Act that was widely supported by feminists, on the grounds that it was an invalid regulation of commerce and illegitimately extended Congressional civil rights powers to private behavior. 24 The Olin Foundation also funded the Independent Women’s Forum, a libertarian group with close ties to conservative activists, originally formed to defend Supreme Court nominee Clarence Thomas against sexual harassment claims.25 This organization went on to similarly take stands in other high-profile feminist legal efforts, such as filing amicus briefs in opposition to the constitutional challenge to the exclusion of women from the Virginia Military Institute, a prestigious public undergraduate institution. 26 Olin’s active support for the conservative Manhattan Institute think tank further shows how leading funders of law and economics designed their institutional networks to actively disparage and marginalize legal feminism while advancing law and economics ideas. Heather Mac Donald, who long worked as the Manhattan Institute’s John M. Olin Fellow, built an influential career challenging the legitimacy of legal initiatives for gender and racial justice. In response to growing interest in feminist legal theory in U.S. legal academia in the 1990s, for example, the Manhattan Institute promoted a series of commentaries by MacDonald warning that feminist jurisprudence and critical race theory amount to a “dangerous flight from reason and logic,”27 causing many law schools to become “the scene of a full-scale attack on Anglo-American law by a new generation of minority and female professors.”28 Finally, the strategic and covert efforts to integrate orthodox law and economics with general right-wing moral and political ideology are perhaps most clearly represented today by the Federalist Society. The Olin Foundation’s support was “indispensable” to developing that organization into a legal and political powerhouse. 29 Far outstripping the influence and resources of its more liberal or centrist counterpart, the American Constitution Society, the Federalist Society has chapters in virtually every U.S. law school, with over 70,000 members and annual revenues reaching $26 million in 2016, thanks to ample funding from other major right-wing foundations such as Mercer, Scaife, and Koch. 30 The Federalist Society engages a broad audience of students and faculty by showcasing and normalizing conservative arguments on hot-button constitutional issues like gun control, affirmative action, abortion, and freedom of speech.31 Even while highlighting public law and “culture war” issues not directly associated with economic policy, these conservative arguments often share an underlying message of deference to unequal private power as the basis for moral and legal legitimacy. In particular, the Federalist Society organizes numerous lectures criticizing feminist legal protections as contrary to the fundamental freedom and rationality exemplified by individualized market choice. Beneath its public face as an academic debating society, the Federalist Society has recently gained notoriety for its covert role in organizing and funding a political transformation of the federal judiciary.32 The Federalist Society’s longtime executive vice president, Leonard Leo, who is also a private advisor to President Trump, has led a network of interrelated “dark money” organizations focused on raising hundreds of millions of dollars for right-wing political causes.33 Leo played a major role in securing the Supreme Court nomination of longtime Federalist Society member Brett Kavanaugh, 34 who overcame allegations of sexual assault with a display of outrage and victimization at being held to account for the women’s concerns. Expressing a view common among legal academics and policy experts, Leonard Leo responded to reports of the Federalist Society’s role in politicizing and monetizing control of U.S. courts, “I don’t waste my time on stories that involve money and politics because what I care about is ideas.”35 Indeed, Leo’s actions show that he cares especially about organizing (and obscuring) money and political power for right-wing ideas about law, and that his extensive time devoted to money and politics is not wasted by assuming legal ideas are best produced in impartial academic debates. 36 The ideas of law and economics no doubt contribute to its broad appeal well beyond its conservative funding base. The point of situating law and economics in a larger context of institutional motives and money is not to establish guilt by association, but rather to direct closer scrutiny toward the assumptions and consequences of these particularly well-funded ideas about law and economics, especially the claims to provide a distinctly neutral and rational tool for law and policy. As the next section demonstrates, influential law and economics ideas operate to undermine feminism, regardless of the intent or sincerity of those who adopt or credit these ideas.