The perm results in footnoting by legitimizing efficiency as the norm

(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 )

Although the binary frame might seem to support feminist law reforms as special corrections of economic inefficiencies, 47 it makes such arguments suspect. By presuming efficiency is the economic norm, law and economics suggests that any particular harm to women (or others) generally represent individual failures to measure up to the demands of economic maximizing. Prominent law and economics scholar Richard Epstein deploys the binary’s master narrative to conclude that law should not prohibit even overt and irrational employment discrimination. 48 In the orthodox law and economics view, welfare-maximizing is best determined without legal second-guessing or costly oversight, since it defines the overall economic good as the aggregation of individual preferences unmediated by substantive governance. 49 In addition, in the orthodox narrative, any deviations from this naturally maximizing system are likely to be more effectively corrected by that system itself, as part of its presumed impartial and invisible pressures toward optimal equilibrium. For example, if an employer fails to hire the most productive workers due to irrational gender bias, then in this theory, market competition generally will force that employer to change or fail. 50 Even when law and economics arguments do not push as far as Epstein, efficiency arguments are a double-edged sword for feminism because they reinforce the idea that equality is normally a misguided and costly goal. Within this binary frame, antidiscrimination law will appear suspect even when targeting the most egregiously irrational unequal treatment. That is because implementing and enforcing formal equality rules will appear to require shifting resources and power from purportedly efficient and impartial economic production to courts and administrative agencies inevitably dependent on partial, subjective judgments of fact and value.