In April 2025, the University of Chicago Law Review devoted its annual symposium to the theme, “Law and Economics vs. LPE.” The aim was to “clarify the sources of conflict and explore common ground” between these approaches to legal scholarship. It was a clear marker of the impact that LPE scholarship has had — not least because it was convened in the spiritual home of law and economics. Those two days were both gratifying and frustrating, and now that the symposium issue has dropped, we’re opening a thread on the blog for commentary.
I’ll start with some of my own. In this post, I respond to both the main criticism of LPE work and the main defense of L&E that surfaced in Chicago. The criticism and defense are related: LPE work was dismissed as insufficiently empirical or social scientific, while recent L&E work was defended as rigorously empirical and social scientific. There is, we were told, a new L&E. Unlike law and economics of yore, which prized efficiency as a value, the new L&E avoids any such normative commitments; it has become a truly neutral method. In my jottings from the conference, Mila Versteeg put it this way: “Law and economics isn’t a movement anymore. It’s trying to be value-free — a kind of social science, where we find things we don’t want to find.”
Scholarship, Social Science, & LPE
What to make of the notion that all good scholarly work is social scientific and value-free? This is not the kind of thing readily dispatched in a blog post, but here goes: First, this view fetishizes empiricism, as if empirical methods offer a view from nowhere and avoid the complexities of both theory and value. But good empiricism requires theory; data points don’t interpret themselves. Fact and value also cannot be cleanly separated, as decades of writing across philosophy, critical theory, and science studies has shown. The questions chosen by an empirical study, for example, reflect values. To study disease or climate is to put into action a set of ideas and underlying values about what matters. Those values are a predicate, not a barrier, to a great deal of sophisticated intellectual work, including social scientific work. Methods themselves encode values: social science values the form of rationality that it embodies. These points are all well-known, and some of them were pointed out in Chicago.
If values and perspectives are essential to intellectual work, and not something that can be expunged, then we do best to acknowledge them, and invite them to be challenged. This, of course, is the approach critical theorists take, and that LPE scholars tend to take. One advantage of this approach is that it makes good on the desire to not impose values on others. Insisting that one has no values does the opposite, imposing a set of hidden values in the name of a false open-mindedness.
The narrow veneration of social science misfires for another reason. Clearly, a great deal of important intellectual work does not depend upon social scientific methods. Work in history, philosophy, and literary studies can certainly be disciplined, rigorous, and worthwhile, without being social scientific. It also may be empirical. Those defending law and economics in Chicago as a neutral method commonly conflated empiricism with social science, and social science with quantitative methods common to political science and economics. Here, it’s worth noting (as Genevieve Lakier did in Chicago) that anthropology is a social science, but one that takes a very different view of the value of abstraction and counterfactual thinking than does political science or economics today.
What about the critical theoretic work that informs much of LPE scholarship? That work too can be disciplined, and allows us to challenge ways of seeing the world that otherwise congeal as part of an unexamined background — including in social scientific work. Let me illustrate how this works by discussing an example from Chilton, Macey, and Versteeg’s contribution to the symposium. There, the authors construe (I think wrongly) our YLJ Framework article as endorsing the notion that socioeconomic rights reduce inequality. They cite as contrary evidence a recent book by Chilton and Versteeg, which explores whether constitutionally protected socioeconomic rights alleviate inequality. It tries to answer this question by examining the correlation between such rights and social spending, because, as they say in their essay, “it is hard to imagine substantially better outcomes when spending stays the same.”
But is it? That claim assumes that socioeconomic rights operate atop a kind of natural market order, redistributing at the margin rather than intervening more assertively in our political economy. It makes sense that Chilton and Versteeg would assume this, because — as we argued in our YLJ Framework piece — this is a hallmark of how legal scholars have viewed markets, and rights, in the neoliberal era.
I’ve written about this, in fact, in an article that offers an LPE take on the right to medicines adopted in countries like Brazil and Colombia. Courts there have ordered the government to give litigants certain medicines. And companies have in some places rushed in to encourage patients to “judicialize,” to encourage the uptake of expensive new medicines — plausibly undermining public health priorities and equity along the way. I review the social science that describes this problem but resist the conclusion some draw from that literature: that socioeconomic rights are inevitably regressive.
My aim in that piece was to surface and identify the kind of right to medicine we have today — a kind that seems to be unable to challenge private rights, and so unable to meaningfully alter the political economy of medicines. AIDS activists in places like Brazil, South Africa, and India have all tried to use the right to health to intervene in how courts enforce patents or allow them to be overridden, mostly to no avail. And so: a conventional view that holds public and private apart becomes the reason that we cannot imagine a form of socioeconomic rights that might enable better outcomes with less spending. The piece is meant to allow us to see that socioeconomic rights could be constructed differently. (We could also decenter courts in our thinking about socioeconomic rights, but that is a topic for another day.) The point was to discover something new, that critics — and fellow travelers — might find surprising.
Can LPE work play nicely with social science and empiricism though? Does it have room for the more quantitative empirical approaches common at L&E conferences today? I think the answer is yes. As I’ve just described, if you want to understand the right to medicines today, it helps to read the social science evaluating its impacts — and to read it critically. I could also imagine any number of follow-on studies from mine that might help us understand what a different kind of right to health might look like in practice, and whether it would have the effects we might wish.
Indeed, one way to think about what makes LPE spaces so generative today is that LPE scholars are distinctively aiming at the integration of critical work with more directly normative and social scientific modalities of scholarship. It’s simply false that LPE work is, or could be, against empiricism or against social science, as some implied in Chicago. I offer citations as counterpoints in my contribution to the symposium, but I think the broader proof is more conceptual: if LPE scholarship is, as I argue there, engaged not just in critique but also in reconstruction and repair — that is, if our goal is to take the wreckage of our past seriously and address these failures through greater democratic inclusion — then we have to take seriously different ways of asking questions, including social scientific ones.
It just is the case that many practical things we want to do — from combating climate change to providing healthcare for all — require a wide range of methodological tools. Some necessary work is qualitative, critical, and historical, and other work will be experimental and use tools of causal inference. To take two contemporary issues of some importance to LPE: If you are New York City and you want to tax the rich, it matters if they will all leave the state. So, analyses like these are important, if never fully definitive. If we want better medicines, and more public authority over innovation and access, then we need to understand public science, clinical trial design, and public drug production (some of my preoccupations). Lots of good LPE work will investigate questions like these, commonly using mixed methods. My best guess is that even more LPE work will do this over time, as we generate new paradigmatic claims that then invite empirical elaboration and exploration.
That Old-Time L&E?
The other central criticism of LPE is that it criticizes a version of L&E that no one believes in anymore. This idea was repeated many times in the room — and it is a general complaint I have encountered in conversation elsewhere. Yet, as far as I can tell, no one has systematically set out what it means that “no one believes that stuff anymore.” It’s hard to refute the claim until we know exactly what claims are being disavowed.
For now, I’ll focus on the closest version to it that appears in the Symposium: the case Chilton, Macey, and Versteeg make that law and economics today really is best defined as something like law and social science. The argument is, on its face, quite odd. At some points the paper seems to assimilate law and anthropology and law and sociology as forms of “law and economics.” But why would we call that field L&E as opposed to empirical legal studies? Seeing this problem, they add an important qualifier to their definition: L&E scholarship, they say, “(1) has a commitment to using the social scientific method of inquiry to (2) study questions about the law and legal institutions (3) in a way that is typically informed by economic insights.” That last bit is doing some important work — so what are “economic insights”? The examples they give are all rational choice methods — things like game theory and cost-benefit analysis. The result is internally contradictory: L&E seems to both include, and exclude, sociology and anthropology. Their proposed definition also, as they admit, excludes all of the normative and theoretical work of people like Coase and Posner — the work for which the field is most famous.
Though they defend L&E as social science and identify as L&E scholars, they also don’t take a social scientific approach to their claim. Notably, a recent bibliometric study (using articles published in a set of designated L&E journals over many decades) suggests that L&E has become more empirical. Yet as of 2020, half of the articles being published remained what the authors classified as theoretical. The citation analysis the authors conducted also provides evidence that characters like Coase, Posner, Shavell, and Kaplow remain giants in the field.
That paper didn’t focus on the values at play in L&E, but if the Chicago symposium is an example, a lot of work by L&E scholars remains welfarist and invested in efficiency. Liscow and Goldin’s paper is expressly so, for example. It’s hard to take much of anything from the Sanga diatribe, but it’s worth noting that it admiringly cites several L&E papers that are welfarist in orientation. Two of the essays in the symposium, Klick and Hovenkamp, display what we might call disintegrated welfarism: both take a canonical L&E welfarist framework and lop off a few parts to make the analysis more tractable. Klick, for example, adopts the deterrence framework of Gary Becker, but then focuses solely on the costs of crime, nowhere considering the costs or harms of policing. Hovenkamp’s essay defending the “consumer welfare principle” embodies the partial efficiency analysis, focused on consumers and prices, that has dominated anti-trust since Bork — but simply has no answer to the many LPE critiques that have since undermined its foundations (as another post in this series will describe).
The idea that “no one believes any of that anymore” also seems at odds with the fact that L&E, in its old, stylized form, is still deeply lodged in the law school curriculum. I offer a few reference points for this in my piece, but it would be easy to come up with more. This is highly significant. Law schools are training grounds for our political and economic elite, and L&E plausibly has a lot of its impact through pedagogy. To be empirical about it: In my LPE class, every single time I give students a set of assumptions involving a polluter and a local community and ask them to tell me how to get an “efficient” result, they prove able to reproduce the same, classic L&E analysis — doing the wealth-maximizing thing, awarding the entitlement to the place that has highest “willingness to pay,” after pointing to a few “transaction costs”). Almost none of my students come in aware of critiques of wealth maximization as a value, and almost all of them find the basic LPE critiques to be revelatory.
So, as good social scientists, we might ask: if there has been this great disavowal, where is the evidence? How have the casebooks changed, how has legal education changed? And where are the renunciations of welfarism, efficiency, and of Coase, Posner, and other canonical works, by a new generation of L&E scholars?
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I say this with some frustration, of course, but also as a kind of invitation. It seems to me that there has been a shift toward empiricism in L&E scholarship, and that many scholars who attend conferences like ALEA are interested in using social scientific tools to study questions of inequality and power. I find myself puzzled, in fact, that in Chicago there seemed to be so much investment in treating LPE scholarship as threatening, so much misunderstanding of our relationship to empiricism, and so much interest in redefining the capacious world of empirical legal studies as “law and economics.”
In the end, I remain of the view that there is plenty of room within LPE for scholars who attend L&E conferences and are serious about power and inequality today, including those who use mainstream social science methods in their work. What distinguishes LPE work from realism and (classic, second-wave) L&E is not that LPE is anti-empirical or anti-social science. LPE scholarship does seek to learn from critical approaches to questions of political economy and law, and in that sense “joining in” means being open to these approaches. And, LPE scholarship is developing, I think, a distinctive theory of change — aiming not to reorder the political economy in top-down fashion, as earlier movements sought to do, but to facilitate democratic shifts in power and help bring about institutions that are more genuinely democratically ordered.
LPE scholars are interested, in other words, in the hard work that happens when each of us reads across disciplines, and integrates theory, empiricism, and practice, to understand and address the many urgent and important problems around us. It’s no small task, and some of this work of course has to be done with people who study the economy. But here we come upon a dilemma. Many measures we use to talk about things like power in the economy, as I describe in my essay, embody neoclassical assumptions. For example, there remains much work to do to try to figure out how to analyze questions of power in the economy without reifying welfarist measures or the ideal of the self-regulating market.
Those interested in these questions, and LPE scholarship generally, should come to our conferences, read LPE work (not just one or two articles!), and explore critiques of political economy with us. Help us build better theories and provide better descriptive accounts to understand the social and political economic order we have. And — putting my values on the table — help us repair it to render it more democratic and free.
