Harvard Law Review

April, 1996

Commentary

*1393 THE NEW LEGAL PROCESS, THE SYNTHESIS OF DISCOURSE, AND THE
MICROANALYSIS OF INSTITUTIONS

Edward L. Rubin [FNa]

Copyright (c) 1996 Harvard Law Review Association; Edward L. Rubin

WESTLAW LAWPRAC INDEX

LED -- Law School & Continuing Legal Education

The conceptual disarray of legal scholarship has become so familiar to us that we have
ceased to regret it. Any suggestion that some new synthesis -- or worse still, paradigm -- is
imminent would generally be regarded as naive. Nonetheless, a survey of current legal
scholarship and of developments in related fields suggests that a new approach, combining
several current trends into a comprehensive framework for scholarly discourse, is in fact a
realistic possibility.

The last unified approach in legal scholarship was a broad-based and somewhat diffuse
theory that became known as legal process. Legal process first proved to be extremely useful as
a framework, then proved equally useful as a target. For about two decades, it generated a large
body of scholarship derived from common premises, produced a lively debate about the
implications of these premises, and expressed the guarded optimism necessary to sustain an
essentially prescriptive discipline like law. For the next two decades, it incited the critiques of
law and economics and critical legal studies, both of which frequently sustained themselves by
attacking the prior dominance and continuing appeal of the legal process school. By the time
this attack had run its course, legal process lay in ruins and the disarray of legal scholarship had
become apparent.

Within recent years, however, several new trends have emerged. Law and economics has
shed much of its combativeness and begun to pursue complex questions about the behavior of
public institutions, with a few scholars explicitly seeking to incorporate these considerations into
a new legal process theory. At the same time, ‘outsider‘ scholarship -- critical race theory,
radical feminist theory, and gaylegal studies -- has jettisoned the fatalistic skepticism of critical
legal studies and begun to incorporate its insights into a similar, although less explicit, synthesis.
Thus far, these two trends have been either hostile or oblivious toward one another; it seems
unlikely that they would ever find themselves in substantive agreement. The promise of a new,
comprehensive approach to legal scholarship, akin to legal process, lies in the possibility that
these two movements could develop a *1394 unified scholarly discourse. There are many other
themes in modern legal scholarship, of course, but the discursive unification of two such
important and opposing ones would be at least suggestive of a more comprehensive synthesis.

This Commentary argues that contemporary law and economics and outsider scholarship
share a common ground -- the effort to locate law, social policy, and social change in a closely
analyzed institutional context. What is particularly promising about the effort is that institutional
analysis has also become a major theme in the academic fields that gave rise to both these
schools. To develop a new synthesis of discourse for legal scholarship, ideas from all these
fields must be incorporated, for most scholars agree that law can no longer sustain itself as an
autonomous discipline. Whether these complex and disparate elements can actually be
integrated is an open question -- there is nothing inevitable about the process -- but synthesis
seems like an appealing alternative to the currently fragmented state of legal scholarship.

Part I of this Commentary discusses the character of the legal process school and the
critiques by law and economics and critical legal studies scholars that led to the demise of legal
process as the dominant approach. Part II observes that current developments in law and
economics and critical legal studies seem to be converging around issues of institutional
analysis. Part III traces similar developments in the fields that underlie these movements --
economics and continental social theory. Part IV discusses the possibility of a new synthesis of
discourse that would revive and advance the legal process agenda through a microanalysis of
institutions. Part V then suggests the value of this new synthesis for achieving the discursive
goals of legal scholarship.

I. The Rise and Fall of the Legal Process Movement

A. The Theory of Legal Process

Legal process was itself a synthesis [FN1] of the two major themes in prior legal
scholarship. The academic study of law was originally installed on American university
campuses by means of a theory currently known as formalism but regarded by its progenitors as
scientific jurisprudence. [FN2] According to this theory, law -- and specifically common*1395
law -- embodies general, logically connected legal principles that can be discerned by studying
judicial decisions. [FN3] Formalism prevailed, despite spirited dissents, [FN4] for some forty
years, but it finally succumbed to a sustained attack from legal realism. Partially inspired by the
statutory displacement of the common law resulting from Progressive Era and New Deal
legislation, the realists maintained that general legal principles do not exist: law is always the
creation of some specific lawmaker, whether legislator, administrator, or judge, and it usually
reflects the policy predilections of that lawmaker. [FN5]

The realist attack on legal formalism proved decisive, in part because it was consistent both
with political trends and with intellectual developments in other fields. Legal realism did not
provide a constructive theory of law, however. The success of the legal process movement
stemmed from its ability to synthesize the insights of the realists with the aspirations of the
formalists. It began by acknowledging, as the realists insisted, that all law is derived from
political decisions. Thus, a theory of law must operate within a narrower ambit than the
formalists claimed; there are no substantive legal principles*1396 that transcend the political
process and that can be invoked to invalidate political decisions. [FN6]

Having defined the boundaries of jurisprudence in essentially the same way as did the legal
realists, legal process scholars avoided the implicit nihilism of the realists by developing a theory
to operate within those limits. Its central principle was that each governmental institution
possesses a distinctive area of competence such that specific tasks can be assigned to that
institution without reference to the substantive policies involved. [FN7] Although this principle
originates outside politics, it is a purely procedural one. It has no substantive implications and
thus does not commit the error of the formalists by placing legal principles above the political
process. To use Herbert Wechsler's famous phrase, it is a ‘neutral principle.‘ [FN8]

Institutional competence is a concept that can be readily applied to the chief executive, the
legislature, or administrative agencies, but the main concern of the legal process school was the
judiciary. The particular task of courts, according to Lon Fuller, is to decide cases on the basis
of reasoned argument, and only issues that can be resolved by that approach are appropriate for
judicial resolution. [FN9] When courts go beyond this role, they endanger their legitimacy as
legal institutions -- first, because they assert an unjustifiable claim to political superiority, and
second, because they act beyond their area of competence. The legal process school thus
reconstituted the prior separation between law and politics, not by positing transcendent legal
principles, but by identifying a separate and politically established legal realm in which reasoned
argument prevails.

This line of argument could readily generate an approach that resembles Kelsenian
positivism, [FN10] leaving courts with a delimited and *1397 decidedly nonheroic role. But
legal process was an American theory, and it avoided such an unappetizing result by means of
the common law and the Constitution. The common law grants judges the authority to legislate --
to announce new legal rules -- on the basis of the reasoned arguments that Fuller identified as
their particular preserve. The Constitution's role is even more noteworthy for legal process
scholars, particularly given their frequent emphasis on public law. It guarantees, in their view, a
series of basic human rights, perhaps even a system of human rights, as a matter of positive law,
and authorizes the courts to enforce these rights. In addition, it authorizes courts to protect the
integrity of the political process against systematic distortions such as exclusion from
participation or majoritarian oppression of ‘discrete and insular minorities.‘ [FN11] Because
political decisions are dominant, courts may not go beyond the politically granted role articulated
in the Constitution. If they remain within the limits of that role, however, they legitimately
exercise an authority that supersedes the ordinary decisions of the political branches. [FN12]
More generally, both the common law and the Constitution contain embedded value choices that
authorize judicial action. These sources of law establish the proper role of courts as
encompassing a blend of positive and normative functions, thus rescuing judicial action from the
moral aridity of positivism. [FN13]
 Legal process theorists accepted the prevailing notion that government institutions act
rationally to achieve their goals. [FN14] The question they asked about these institutions
involved their legitimacy: that is, whether their actions correspond with the common good.
Presumably, the common good will be advanced by the political branches in a democratic
system, at least in the absence of particularized distortions like discrimination because these
institutions are controlled by the populace. Most courts, and particularly the federal courts, are
more problematic*1398 because they are not directly subject to the electoral process or to the
supervision of any elected official, but only to words written in a statute, a group of previous
decisions, or a constitution. When courts use their reading of a constitution to overturn the
political branches, they create a particular risk of illegitimacy, a problem decisively characterized
by Alexander Bickel as the countermajoritarian difficulty. [FN15] If they remain bound by that
constitution, however, thereby avoiding the errors of substantive due process, courts can join the
other branches in producing socially desirable results. Such self-restraint is particularly important
because courts are assigned the task of protecting individual rights and securing the integrity of
the political process; should they dilute their own legitimacy, they would endanger the rights that
they are uniquely authorized and qualified to protect. [FN16] The precise boundaries of the
courts' constitutionally assigned role thus became a matter of an intense debate based on
commonly shared premises, a process that is virtually the defining feature of a successful
paradigm or framework. For example, the scholar criticized most frequently in Alexander
Bickel's classic, The Least Dangerous Branch, was Herbert Wechsler. [FN17] Precisely what
divided these two lions of legal process may take a moment for non-aficionados of their work to
recall -- it was the legitimacy of strategic action by the courts -- but it was issues of this nature,
and the debates they generated, that nourished the legal process approach for such a long period
of time.

B. The Critique of Legal Process

Both law and economics and critical legal studies defined themselves, in part, by attacking
legal process. The law and economics criticism was directed at the idea that public institutions
are purposive, rational, and generally committed to the public good. Initially, the argument was
that these institutions, by imposing extensive regulation on the market, had made a substantive
mistake; in areas such as broadcasting, transportation, and banking, market forces are more
efficient than government regulation. [FN18] As law and economics incorporated*1399 public
choice analysis, its critique became more general and more theoretical. Public choice theory
treats legislators and the chief executive as reelection maximizers. [FN19] They are perfectly
rational as individuals, since reelection maximizes each individual's self-interest, but the
behavior of the institutions that they comprise is determined simply by the sum of their
uncoordinated individual efforts. The institution, therefore, has no capacity to pursue public
policy goals in a rational manner; in fact, it has no collective purpose whatsoever. When a
legislator delegates authority to an administrative officer, for example, she is not rationally
relying on the administrator's expertise, but is obtaining the electoral benefits of public-oriented
legislation while giving powerful interest groups the opportunity to eviscerate that legislation in
a less visible setting. [FN20]

Public choice theory has been less successful in developing an explanation for the behavior
of nonelected officials. Several scholars, most notably Gordon Tullock and William Niskanen,
suggest that administrative agents attempt to maximize their budgets or their discretion. [FN21]
But no stable theory has emerged to explain the behavior of judges because most American
judges, regardless of their substantive decisions, are insulated from monetary rewards or
punishments, guaranteed of their position, and unable to affect their own jurisdiction in any
direct fashion. [FN22] Public choice analysis of judges, therefore, has *1400 continued the legal
process approach of treating judges as rational, public-oriented decisionmakers, and its main
recommendation to these judges is that they adopt a more critical posture toward other
government decisionmakers. [FN23] Concomitantly, public choice theorists argue that judges
should regard the market as a positive alternative that generally produces more efficient results
than nonjudicial governmental action does. [FN24] As a result of the failure to reduce judicial
behavior to self-interest maximizing and the desire to rely on judges as facilitators of the market,
law and economics, unlike the economic analysis of politics, [FN25] became almost as focused
on the judiciary as did the legal process movement.

The critical legal studies attack on legal process was more direct and comprehensive. It
consisted of two related, although far from logically connected, arguments: first, that there are no
neutral principles, because all actions by government decisionmakers reflect the basic allocation
of power in society, [FN26] and second, that judicial decisions are radically indeterminate, as the
legal realists insisted. [FN27] Rejecting the concept of neutral principles is an obvious attack on
legal process, but the criticism actually strikes deeper than Wechsler's claim that such principles
exist and can be advanced in judicial decisionmaking. If law is in fact controlled by politics, then
the legal process compromise between the superiority of the political branches and the *1401
countermajoritarian role of courts collapses. Even worse, critical legal studies scholars argue, the
mere assertion that courts rely on neutral principles is not only false, but oppressive. As
Horkheimer and Adorno, the founders of the Frankfurt School, observe, claims of neutrality are
designed to mask the exercise of power, to communicate a pseudo-scientific methodology that
disables people from perceiving the possibility of rebellion or dissent. [FN28]

The claim of critical legal studies scholars that law is indeterminate was intended to discredit
the notion that the judiciary's role is to decide issues by reasoned argument. This claim is
twofold: that the courts substitute politics for reason and that the nature of language precludes
reasoned argument about legal meaning. In formulating this claim, critical legal studies drew on
a range of theorists, most particularly the French deconstructionists, [FN29] whose analysis of
the interpretive process was more sophisticated than any theory of textual interpretation in prior
legal scholarship. The force of the critical legal studies claim was that it simultaneously refuted
the concept of reasoned argument and called into question the interpretive theory that served as
the basis for an activist judiciary. For example, legal process scholars argue that the judiciary
derived its power over the political branches from an interpretation of the constitutional text, but
if the text is indeterminate, then the judiciary's power rests on mere political will. [FN30] As
this last point makes apparent, critical legal studies, like law and economics, directed the major
force of its critique at the judiciary. There is no point in arguing that law is indeterminate if one
is solely concerned about the legislative or executive branch, because these branches do not
purport to interpret existing law.

Law and economics and critical legal studies were united not only in their choice of target,
but also in a number of their criticisms of this target. Both rejected the legal process claim that
law could be separated from policy, both saw the political branches as instrumentalities of
entrenched interest groups, and both held judicial decisions to an external, substantive
standard. Nonetheless, the two movements expressed an open enmity for one another. [FN31]
An obvious explanation is the divergent political predilections that gave rise to each movement,
*1402 but the correspondence between their political positions and their methodologies is not
logically required. That is, economic analysis is not necessarily the exclusive instrument of the
political right, nor deconstruction the instrument of the left; political debate could have been
carried out within either methodological framework.

The joinder of methodology and political position in both movements seems to have resulted
from certain natural, but not obligatory, intellectual associations particular to the time in which
the two movements arose. The underlying concern of law and economics scholars was
efficiency. As regulatory measures proliferated, even under a self-declared conservative like
Richard Nixon, these scholars saw society squandering its resources on ill-conceived efforts to
combat both genuine and imaginary wrongs. Economic analysis seemed like a natural
instrument to use in pointing out the expense of this policy and the advantages that would accrue
from its abandonment. Critical legal studies scholars, on the other hand, were predominantly
concerned with equality. This value was widely championed by mainstream politicians in the
1960s -- often most insistently by those who seemed intent on denying it. By the 1970s, the brief
flurry of revolutionary expectations had become submerged in politics-as-usual. Critical theory,
which had emerged from similar, although more apocalyptic, events in Europe, was an equally
natural response in America.

Once history had introduced this political division, a further methodological division
between the two movements tended to deepen it. Economics -- especially the neoclassic
microeconomics that prevailed in the 1950s and 1960s -- was the ultimate ‘hard‘ social science.
As Donald McCloskey points out, it embraced the positivist positions that prediction and control
are the goals of knowledge, that only the observable implications of a theory matter, and that
internal states of individuals are irrelevant unless manifested in behavior. [FN32] Critical theory,
on the other hand, was opposed to positivism, arguing that normative judgments and lived
experience are crucial elements of human knowledge and that external observations are
controlled by internal commitments. [FN33] There is, once again, no necessary connection
between these methodologies and the political positions associated with them; in nineteenth-
century Europe, for example, Marxism regarded itself as scientific social theory, while Christian
conservatism appealed to moral values.
 *1403 II. The Partial Return of Legal Process

Much of the disarray of current legal scholarship is attributable to the collapse of legal
process as a unified discourse and to the divergence of the two scholarly movements that were
principally responsible for this collapse. Clearly, something has been lost as a result -- not only a
sense of shared discourse, but also a rationale for the core enterprise of standard legal
scholarship, an enterprise that many legal scholars still pursue. [FN34] At the same time, the
insights of law and economics and critical legal studies are too important, and the continuing
commitments of scholars to these movements too deep, for any new synthesis to be built upon a
mere revival of the legal process school. Instead, the question is whether these two movements
can be joined to form a new core enterprise in which other legal scholars can participate.

The one element of legal process theory that was not explicitly attacked by law and
economics or critical legal studies was the call for comparative institutional analysis. This
omission is not surprising; unless one is willing to assert, as the formalists did, that absolute legal
and social truths exist independently of institutional arrangements, the question of which
institution is best able to carry out a given task necessarily arises. The only other way to avoid
comparative institutional analysis is to assert that legal institutions have no capacity to improve
society. Both movements did come close to making this assertion. Law and economics scholars
argued that social arrangements are best left to the market, which they treated as optimal,
preexisting, and instinctive -- that is, the way eighteenth-century philosophers treated
nature. Critical legal studies scholars argued that politics inevitably and definitively controlled
social arrangements -- treating politics the way thirteenth-century philosophers treated sin -- and
that radical change in the structure of government was the only solution. But other scholars
became dissatisfied with these quasi-fatalistic positions, in part because meliorism is deeply
embedded in American culture, [FN35] in part because fatalism leaves no room for a prescriptive
discipline like legal scholarship.

The revival of concern about comparative institutional analysis lies at the center of current
scholarly efforts to rethink the insights of both law and economics and critical legal
studies. Attempts to integrate *1404 these insights with the aspirations of the original legal
process school point toward a new synthesis of scholarly discourse. Because this work continues
to emphasize judicial decisionmaking, its institutional analysis necessarily implicates the role of
legally enforceable rights and their underlying values; thus, legal process issues regarding
judicial authority and method continue to animate contemporary scholarship. It is also true, of
course, that legal process analysis never disappeared from American legal scholarship; important
work was published during the period when law and economics and critical legal studies
flourished, and interest in the works of the original legal process school continues to this day.
[FN36] Of particular concern for present purposes, however, is the possibility of synthesis, that
is, the possibility that current developments in those areas of legal scholarship most hostile to
legal process can be integrated into a unified scholarly discourse.

A. Post-Chicago School Law and Economics

 Efforts to integrate law and economics with comparative institutional analysis originate with
the increasing sophistication and decreasing contentiousness of scholarship in this field, a trend
that can be identified as post-Chicago School law and economics. Even a simple market failure
model, when considered fully -- and not merely as an argument against excessive regulation --
rapidly raises questions about the proper response to such market failures. Early in the 1980s,
then-Judge Stephen Breyer pointed out that the real problem is not regulation, but mismatches
between different regulatory responses and the market failures that they are designed to address.
[FN37] An obvious field in which this mismatch occurs is environmental regulation. Because
many law and economics scholars acknowledge that environmental pollution represents a market
failure requiring regulation of some sort, discussion has shifted to debate about regulatory
options such as bubbles, the licensing and sale of pollution rights, the use of incentives, and other
economically informed approaches. [FN38] In commercial*1405 law, the existence of a market
failure is more debatable, but here, too, many law and economics scholars perceive sufficiently
serious problems to proceed with the assessment of regulatory alternatives. [FN39]

Analysis of litigation constitutes a separate and important theme in post-Chicago School law
and economics scholarship. Although the Chicago School is generally hostile to governmental
intervention in the market, its orthodox practitioners have looked on the judiciary's role with
approbation. This difference in approach results, in part, from Richard Posner's claim that judge-
created, judge-implemented common law is inherently efficient, [FN40] and, in part, from the
widespread recognition that public enforcement of private agreements is required for the smooth
operation of the market. Public choice analysis has not impaired this somewhat Panglossian view
of judges because, as previously mentioned, public choice theorists have been unable to
construct a convincing model of self-interested judicial behavior. [FN41] But post-Chicago
School law and economics scholarship has been increasingly concerned with the legal process
project of determining both the competence of courts and the proper role of rights-based
arguments. By the 1980s, for instance, a number of scholars had observed that judicial action in
our system involves not only judges, but also lawyers. This recognition led to an analysis of
lawyer incentives, client incentives, lawyer-client interactions, and the effect of these
motivations and behaviors on the outcomes of litigation. [FN42]

*1406 The effort to construct a new legal process theory out of law and economics became
explicit with the introduction of positive political theory into legal scholarship. [FN43] Positive
political theory is an application of game theory to politics; it views relationships between
political actors, such as the President, Congress, and the Supreme Court, as a sequential game in
which each party acts based on its expectations of the other parties' responses. [FN44] For
example, legislatures may take the interpretive strategy of courts into account when drafting
legislation; courts recognize this possibility and make corresponding adjustments in their own
interpretive strategies. Positive political theory is similar to public choice theory in its view of
public officials as rational self-interest maximizers. Instead of restricting self-interest to the
individual, however, positive political theory analyzes institutional interests as well and views
members of the institution as maximizing the power or discretion of the institution as a whole.
This institutional focus restores the possibilities that public institutions can make choices based
upon their competence to resolve specific issues, and that legal scholars can address
recommendations to them on the basis of that competence.

Scholars who do not identify themselves with law and economics or with positive political
theory have also proposed approaches for integrating these methods with institutional
analysis. In Reconstructing American Law, Bruce Ackerman suggests that liberal proponents of
the activist, post-New Deal state can transcend the lawyer's anecdotalism regarding factual
situations and think more systematically by incorporating the insights of Coasean economics.
[FN45] A somewhat different but equally explicit effort to integrate public choice and legal
process theories is found in Neil Komesar's Imperfect Alternatives. [FN46] Komesar treats the
need to choose among institutions as the central problem of government. He incorporates the law
and economics insight that the market is one such institution and thus views the alternatives as
the *1407 market, the political branches, and the courts. Moreover, in evaluating these
alternatives, he relies upon public choice analysis. Thus, Komesar believes that the market deals
effectively with the interests of groups that are readily aggregated, but ineffectively with those
whose aggregation involves high transaction costs. Similarly, legislatures are often dominated by
special interest groups that use their influence to extract wealth from the general public, but they
will respond to large majorities mobilized by political entrepreneurs. [FN47] Judicial remedies
are available to groups that lack both market and political power, but only when the groups are
manageable in size and have high stakes in the outcome of the litigation. In Komesar's view, no
single institution is optimal, even for a particular issue; the task is to choose among imperfect
alternatives on the basis of this comparative institutional analysis. [FN48]

B. Outsider Scholarship or Post-Critical Legal Studies

No one has explicitly claimed an interest in integrating critical legal studies with legal
process, but the various movements that have been collectively identified as ‘outsider‘
scholarship -- critical race theory, radical feminist theory, and gaylegal studies -- have in fact
begun to do so. The notion of choosing among institutions is central to this enterprise as well.
According to the scholars working in these movements, racial minorities, women, and gay men
and lesbians cannot afford the luxury of critical legal studies' fatalism; the legal system is too
well-entrenched to be dismissed. Even if true emancipation can only occur when the system is
entirely transformed, these groups suffer now from particularized disadvantages that could be
remedied by more immediate and delimited reforms. [FN49] Thus, critical race theory, *1408
feminist theory and gaylegal studies can be described as post-critical legal studies in their desire
to use existing legal institutions to achieve social justice for marginalized or disempowered
groups.

Although critical race theorists have condemned the critical legal studies movement, they
have actually derived a great deal of their approach from it. The most apparent connection,
embodied in the shared term ‘critical,‘ is a rejection of America's liberal consensus, an insistence
that fundamental biases in our culture sustain pervasive inequality. [FN50] Both movements
reject the liberal image of the autonomous individual, a person who need only be provided with
equal opportunity to flourish, on the basis that all individuals are constructed by a social system
that embeds prevailing power relationships in facially fair and equal legal structures. But critical
legal studies also inspired the more pragmatic aspects of critical race theory, for both are
definitively institutional approaches to law and politics. Unlike the legal realists, who regarded
judges as inadvertently and individually stumbling into incoherence, critical legal studies
scholars see the judiciary as part of an institution dedicated to maintaining the existing power
structure of American society. The difficulty for critical race theorists in adopting this approach
is that its largely class-based analysis has deep roots in European politics, but relatively few in
the United States. [FN51] Indeed, the political conservatism of American workers has precluded
critical legal studies from developing a persuasive pragmatic program; as a result, the movement
resorted to notions of false consciousness and thereby took a somewhat abstract, conceptual turn.

Critical race theory avoids this dilemma because members of racial minorities in the United
States generally identify with their own groups, thus generating political loyalties as strong as
those of the European working class, and because race in general is a highly salient issue in
American political culture. Critical race scholars are thus more easily able to translate their
critiques into prescriptive institutional*1409 considerations, rather than abstract condemnations.
This institutional focus reflects a partial joinder of the critical legal studies critique with the
agenda of the legal process school. Critical race theorists have explored the role of law in
achieving social change; the value of remedies such as discrimination statutes, affirmative action,
integration, and reparations; the choice among courts, legislatures, and administrative agencies as
the means of implementing these remedies; and the relationship between these remedies and
different strategies for interpreting constitutional rights. [FN52] At the same time, they have
abandoned critical legal studies' reliance on deconstruction as a distinctive methodology, and
have used it instead as an instrument of a political critique more akin to standard legal
scholarship. [FN53]

Critical race theory is applicable to all branches of government, but a large proportion of its
analysis and an even larger proportion of its recommendations have been directed at the
judiciary. Like the legal process school, critical race theory emphasizes the courts' role in
defining rights and looks to these rights as a major means of achieving social justice. In
considering these issues, however, the commitment of critical race theorists to particular legal or
political institutions is provisional, not absolute; a court, a legislature, or an agency is a desirable
choice only to the extent that it can help achieve an underlying purpose. [FN54] Thus, although
legal process scholars were generally insistent on preserving the legitimacy of the courts in
preference to any substantive policy, critical race theorists regard the courts, and other political
institutions, as legitimate only if they achieve the purposes that a critical analysis of race
relations has defined.

Like critical race theory, radical feminist legal scholarship rejects the liberal formula of
autonomous individuals and equal opportunity; its particular assertion is that patterns of male
domination have constructed gender relations to an extent that precludes true equality or self-
fulfillment without extensive social change. [FN55] Like critical race *1410 theory, feminist
theory uses institutional analysis. For example, Catherine MacKinnon's claim that all sexual
relations between men and women are a form of rape does not assert that every man acts
abusively, nor does her condemnation of pornography assert that all such material is offensive to
all women. Rather, the idea is that sexual relations and pornography belong to a set of social
institutions that are oppressive in their overall effect and that confer oppressive meanings on
individual actions and communications. [FN56]

Although this argument relies partially on the idea of false consciousness for its connection
with political reality, it is grounded in the sense of shared identity that many women experience
and that has found expression in the women's movement. In fact, radical feminist scholarship is
notable for its political pragmatism. Despite its global condemnation of social relations, its
prescriptions have been relatively narrow, focusing on the reform of the evidentiary rules for
rape trials, the elimination of sexual harassment in occupational settings, the abolition of
restrictions on abortion, and the prohibition of pornography. [FN57] This focus represents a
partial integration of the critical perspective with the legal process school's use of institutional
analysis. Moreover, it focuses attention on the judiciary and its capacity to articulate legal rights
that protect women and help to secure their independence.

Recent concerns that some feminists have raised about the movement's emphasis on male
domination have further amplified the field's concern with institutions generally, on courts in
particular, and on the character of legal rights. The theory of male domination and female
subservience, according to these critics, tends to ignore women's efforts to assert themselves and
take control of their own lives despite the *1411 difficulties that they face. [FN58] Once these
efforts are acknowledged, the problem is not only to combat oppression, but also to select
institutional arrangements that encourage and validate women's self-assertive actions. Rights are
regarded as particularly significant in this regard, partially because they can validate women's
resistance, partially because the very act of asserting a right, in either a judicial or a private
setting, is an important form of independent and effective action in American society.

Gaylegal studies, though a separate and increasingly important movement in legal

scholarship, has much in common with critical race theory and radical feminism, evincing a
similarly critical approach to majoritarian culture and its institutional embodiments. [FN59] It
derives its pragmatic orientation from the existence of a political movement of self-identified
individuals and focuses on a set of issues identified by that movement, such as admission to the
military, AIDS policy, same-sex marriage, and antidiscrimination statutes. Again, gaylegal
studies frames its analysis in terms of institutional choices and the articulation of legal rights. It
thus represents still one more effort to integrate the insights of critical legal studies with the
agenda and general orientation of the legal process school.

III. The Foundations of a New Synthesis of Discourse

Despite their obvious differences in methodology and political orientation, post-Chicago

School law and economics and outsider scholarship, or post-critical legal studies, share a number
of important features that connect them with legal process theory. They are both concerned with
practical problems of governance, they both focus on the relative effectiveness of institutions in
solving these problems, and they both display a particular concern with the judiciary and with the
mechanism of legal rights. This congruence between the two disparate movements and the legal
process school suggests the possibility of a new synthesis in the discourse of legal scholarship.

To be sure, both these modern movements are built upon the explicit rejection of legal
process. What is interesting, however -- and further suggestive of the possibility of synthesis --
is that their rejections also contain common elements, despite their disparate origins. First, post-
Chicago School law and economics and outsider scholarship *1412 agree that the legal process
school was incorrect in asserting that law and politics can be kept separate. Law need not be
mere politics, but it is deeply influenced by power relationships in the society at large. Second,
and closely related, is the idea that there are no purely rational decisions, ideal institutions, or
optimal solutions, but only second bests. Neither an unregulated market nor a transformed and
emancipated set of public institutions can solve all our problems or, indeed, any serious problem
in a conclusive manner; the choice will always be among what Komesar calls ‘imperfect
alternatives.‘ [FN60] Third, although legal rights are likely to be an important element in
addressing any social problem, both schools agree that one must understand these rights in
instrumental terms. Rights do not justify themselves, nor do they possess inherent legitimacy, no
matter how hard one squints at precedents or the text of the Constitution. Their value, rather, is to
be judged in terms of their ability to advance underlying social purposes.

However, these common elements in both the revival and the rejection of legal process are
not in themselves sufficient to generate a single framework of analysis, as legal process
did. Post-Chicago School law and economics and outsider scholarship lack a common
methodology, a common set of terms, a commonly agreed-upon field of debate, and a sense of
common enterprise. In fact, it is remarkable how disconnected the two movements are, given
that they have developed in the same academic institutions, published in the same scholarly
journals, and shared a common concern with law and legal institutions.

Although the political differences between these movements are the most obvious
explanation for this disjunction, the more interesting explanation lies in the methodological
differences between economics and critical theory, and between ‘hard‘ and ‘soft‘ social sciences
in general. As previously stated, there is no necessary link between political position and
methodology, no reason why each movement cannot share the methods of the other. Because any
synthesis of these movements is likely to occur at the level of scholarly discourse, and not at the
level of substantive political positions, real possibilities for synthesis emerge primarily in this
methodological realm. In fact, the disparate methodologies that originally inspired law and
economics and critical legal studies, and that produced the gulf between them, have become
somewhat dated. New developments have emerged both in economics and in philosophical
sociology, and many of these developments are converging on the theme of institutional analysis.
Once law and economics and outsider scholarship are informed by these developments, it may be
possible to use this common ground of institutional *1413 analysis as the basis of a new
synthesis of scholarly discourse about law.

A. New Institutional Economics

New institutional economics has developed in the past twenty years through the work of
Douglass North, Oliver Williamson, and others. [FN61] It is termed ‘new‘ because there was an
earlier school of economists, which included John R. Commons and Thorstein Veblen, that
analyzed institutions from a less systematic point of view. [FN62] The current version is based
on Ronald Coase's model of transaction cost economics and represents an explicit rejection of the
neoclassical economics from which the Chicago School of law and economics was derived. Its
central contention was that most economic actors are not isolated individuals engaged in diadic
exchanges, but rather members of complex organizations whose motivations, behaviors, and
knowledge are heavily affected by their institutional settings.

New institutional economics uses transaction costs, rather than production costs, to explain
the structure of market participants. Its unit of analysis is the contract or transaction. If
transactions were cost-free, then the organization of the firm would confer no economic
advantage; any particular structure would be as good as any other because the supposed
advantages in the production process that derive from factors such as technological superiority or
economies-of-scale could be duplicated readily by various contractual arrangements. In the real
world, however, transactions involve extensive costs: obtaining information about the item one is
buying, committing assets to a contract that cannot be readily redeployed if the deal falls apart,
taking precautions against opportunistic behavior by the other party, and enforcing the contract if
the other party breaches. These costs determine whether a market participant buys the inputs that
it needs on the spot market, enters into long-term contracts, or acquires production facilities and
produces inputs internally. [FN63] Because transaction costs are a large and variable element of
total costs, the institutional arrangements that respond to them make a difference in determining
overall efficiency. Transaction cost economics is inherently comparative; the question is not how
an ideal market functions, but which institutional governance structure is most advantageous in a
given situation. [FN64]

*1414 Transaction cost economics expands this basic focus on institutional arrangements to
include a variety of other institutional phenomena. An example is Herbert Simon's idea of
bounded rationality, which posits that people's ability to make rational decisions is limited by the
information they receive and by their own ability to process and communicate this information.
[FN65] Bounded rationality emphasizes the importance of institutions in two different, equally
important ways. It suggests that the quality, or rationality, of decisions will be heavily influenced
by the institution's ability to deliver complete and accurate information to the relevant
decisionmakers. In addition, it suggests that individuals must rely on institutions to simplify and
regularize a complex environment because their own ability to process information is inherently
limited; by establishing settled expectations and decisionmaking heuristics, the institution
enables individuals to reach decisions in a socially coherent manner and to communicate those
decisions to other members of society.

A second area of institutional action highlighted by transaction cost economics is the

panoply of rules that constrain and structure behaviors within a given institution. [FN66] These
rules affect the supervisor's ability to control her subordinates, the predictability of
decisionmaking, and the institution's ability to respond to unprecedented situations. Williamson
points out, for example, that firms cannot efficiently grow beyond a given size because the
transaction costs saved by producing inputs internally are outweighed by the resulting costs
imposed by decreases in supervisory control. [FN67] A third institutional phenomenon is the
development and operation of informal norms within the institution. Transaction cost
economists have begun to explore how norms of cooperation develop and how socially
established values are integrated with considerations of self-interest. [FN68] This issue has
already been introduced into legal literature by Robert Ellickson, although he focuses on disputes
in a noninstitutional setting. [FN69]

The concern with transactions and transaction costs leads to a greater emphasis on the
institutional environment in which the firm *1415 exists. A party who has obtained a contractual
promise from another must be able to enforce it, particularly if the promisee has committed
resources in reliance on that promise. One cannot assume that enforcement is costless or that it
has a constant cost and produces predictable results. [FN70] In fact, as North observes, ‘the
structure of enforcement mechanisms and the frequency and severity of imperfection play a
major role in the costs of transacting and in the forms that contracts take.‘ [FN71] Similarly,
regulatory rules and practices can alter the relative desirability of various firm structures,
exposing long-term contracts to antitrust challenges or favoring hierarchy by imposing expensive
reporting requirements on transactions.

Although public entities are not subject to the same sorts of market constraints, their
transaction costs also vary as a result of their structure. Questions of hierarchy versus
decentralization, bounded rationality, the nature of internal rules, and the external enforcement of
those rules will influence the operation of these agencies and the efficiency of their
actions. Transaction cost economics extends to the analysis of public institutions, in a manner
that neoclassical economics does not, for at least three reasons. First, the field's more complex,
sociological consideration of the firm's internal structure is consistent with a similar analysis of
public institutions. [FN72] Second, public agencies determine the external constraints that
operate on private firms. [FN73] Third, the inherently comparative character of transaction cost
analysis places firms and regulatory mechanisms on a single scale of analysis. As Williamson
states, unless ‘a superior and feasible form of organization to which to assign a transaction . . .
can be identified, the [bureaucratic] failure in question is effectively irremediable. One of the
tasks of transaction cost economics is to assess purported bureaucratic failures in comparative
institutional terms. ‘ [FN74]

*1416 This emphasis on institutional phenomena links transaction cost economics with a
variety of ‘soft‘ social sciences, such as psychology, sociology, and anthropology, that have
often been ignored or even scorned by neoclassical economists. According to the neoclassicists,
‘hard‘ science, generally physical science, provides the proper standard of validity in economics
-- a statement is true only if it offers a definitive prediction that is confirmed by empirical
evidence. This standard not only restricts the scope of economic inquiry and engenders
reductionist approaches to human behavior, but also tends to isolate economics from other fields
that study similar phenomena. Transaction cost economics, by considering matters such as
bounded rationality, institutional rules, and institutional norms, abandons this exclusive reliance
on prediction and incorporates the kinds of analyses that are common in other areas of social
science. This concession may represent a decrease in the field's intellectual rigor, but it clearly
facilitates the use of economics as part of a comprehensive synthesis of scholarly discourse, as
opposed to its neoclassical use as a restrictive displacement of conflicting analytic methods.

B. Continental Social Theory

The continental social theory from which critical legal studies derived its inspiration -- neo-
Marxism and the critical theory of the Frankfurt school -- has continued to evolve. Some of this
evolving thought, most notably French deconstruction, has also served as direct inspiration for
the critical legal studies movement. But deconstruction is an odd choice among methodologies
because it is one of the least legally oriented themes in continental social theory. [FN75] It is also
one of the least institutional and has thus contributed to the increasingly abstract quality of
critical legal studies. [FN76] Other themes in contemporary continental social theory address
the core issues of legal scholarship much more directly. Among the most notable features of
these themes is a growing emphasis on social institutions, an emphasis that resonates with many
of the issues raised in post-critical legal studies, or outsider scholarship.

*1417 Continental social theory, of course, is not a single school of thought, but a complex
cluster that includes, at the very least, hermeneutics, deconstruction, postmodernism,
poststructuralism, critical theory, and systems theory. It possesses a common conceptual core in
its attack on positivism, or its critique of methodology, [FN77] and in its reliance on the works of
Husserl, Heidegger, and Wittgenstein [FN78] in constructing new approaches. Its predominant
substantive theme is the relationship between thought and language, [FN79] but the institutional
grounding of both thought and action is a secondary and increasingly important issue. Different
approaches display different emphases; hermeneutics and deconstruction focus on language,
while poststructuralism and systems theory emphasize institutional analysis. There appears to be
a relationship between these themes, residing in the historical situatedness of language and the
use of language by social institutions, but this relationship is too complex to be analyzed here.
For present purposes, the important point is that continental social theory, having begun with an
emphasis on language and abstract thought, is moving rapidly toward a theory of institutions and
institutionally grounded action.

This trend is most apparent in continental systems theory, as developed by Niklas Luhmann
and elaborated by Claus Offe and Gunther Teubner. [FN80] Although Luhmann displays certain
links to Marxism, the Frankfurt School, Schumpeter, and other critical theorists, he breaks with
them by regarding social structure as the product of impersonal forces rather than self-interested
elites. According to Luhmann, social interactions of any kind are possible in a complex and
uncertain world only when behavioral expectations are ‘institutionalized.‘ [FN81] This process
does not require that the expectations are agreed upon, for the *1418 effort to achieve consensus
is itself so complicated that it would defeat the simplifying purpose of institutionalization.
Rather, institutions estimate and assume consensus, creating sets of expectations that make
communication possible. [FN82] ‘It should not be presumed that this institutional reduction
represents social coercion or even the social determination of behavior. It just happens. ‘ [FN83]

In Luhmann's view, institutionalized expectations are specific to particularized

contexts. Society is differentiated into relatively autonomous systems, most notably the political
system, mediated by power, and the economic system, mediated by money. [FN84] Each system
is composed of a dense fabric of institutions that interact with one another in socially prescribed
ways; Luhmann divides the political system, for example, into the subsystems of public parties
and administration. [FN85] Parties are institutions, of course, and administration includes all the
institutions of government, whether legislative, executive, or judicial. Even the public is a set of
institutions; rather than being an undifferentiated mass of citizens, it is composed of various
organizations, defined roles -- such as that of voter or lobbyist -- and predetermined,
institutionalized themes that structure individual communication with other parts of the political
system. [FN86]

Law is a separate subsystem, according to Luhmann, and one that definitively becomes part
of the political system with the transition from natural to positive law. ‘Positive law,‘ he writes,
‘is an unavoidably politically chosen ‘state’ law.‘ [FN87] Within the political system, law
functions as a set of institutionalized expectations about social norms. [FN88] However, not all
norms can be institutionalized. [FN89] ‘The mechanism of institutionalization serves as a
selection factor which chooses those new expectations for which the consensus of third parties
can be assumed. ‘ [FN90] In the modern state, procedures of governance perform this selection,
and it is these procedures, not the use of physical violence, that serve as the common means of
defining the legal *1419 system's boundaries. [FN91] The study of law, therefore, involves an
examination of the institutional process by which an autonomous legal system selects norms.
[FN92] This capability, called autopoiesis, has been more fully explored in the work of
Gunther Teubner. [FN93] According to Teubner, the law is capable of self-referential action; ‘its
self-descriptions develop a theory of legal sources in which norms can be generated by
precedents of other processes of law creation internal to the law itself.‘ [FN94] An understanding
of law requires an examination of the way legal institutions function in both selecting and
generating the norms they enforce. Thus, continental systems theory not only emphasizes
institutions, but also presents an analysis of law as a set of specifically institutional processes.

Postmodernism, which Lyotard defines as ‘incredulity toward metanarratives,‘ [FN95] might

seem diametrically opposed to the grand theorizing of systems theory, but there is an important,
if implicit, point of contact. The postmodernists reject the individual, or the subject, as the locus
of thought or action, regarding it as a fiction of liberal humanism, [FN96] a ‘face drawn in sand
at the edge of the sea.‘ [FN97] Unless this claim is intended merely to be annoying -- a distinct
possibility with some of the postmodernists -- it raises the natural question about what should
take the subject's place as the focus of social analysis. Various answers can be derived from
postmodern texts; one distinct possibility is that social institutions should be the structuring
entity. By this account, the individual is merely the hapless product, or by-product, of the
socially organized structures that are becoming increasingly impersonal and technological in the
modern world that the postmodernists decry.

Lyotard's The Postmodern Condition, a report on the state of knowledge written for the
government of Quebec, introduced the term *1420 postmodernism and represents perhaps the
leading statement of this position. In it, Lyotard presents knowledge as exteriorized with respect
to the knower, stored in machines, and constituting a contested terrain between the nation-state
and the multinational corporation. [FN98] These institutions are themselves transformed by
modern technology, but they exercise clear primacy over the individual:

[N]o self is an island; each exists in a fabric of relations that is more complex and
mobile than ever before. . . . [A] person is always located at ‘nodal points' of specific
communication circuits, however tiny these may be. Or better: one is always located at a
post through which various kinds of messages pass. [FN99]
Lyotard does not pursue the point, but one might well conclude that his insight
readily leads to an analysis of the institutions that generate these ‘communication circuits.‘
The same implication can be discerned in the works of other postmodern
thinkers. Baudrillard's ‘fatal strategy‘ of casting aside our subjectivity and joining the world of
objects, thereby participating in a ritualized ceremony of existence, focuses attention on the
mechanisms by which these objects are created. [FN100] Deleuze and Guattari's discussion of
rhizomes and nomads as alternatives to hierarchial organization and the state machine naturally
raises questions about the nature of the mechanisms that they oppose. [FN101] At present,
postmodern thought focuses on culture, but its further development, particularly in an applied
field such as law, depends on an analysis of the institutions that create the culture.

Foucault is often regarded as a postmodernist, [FN102] and his thought in fact bears a close
relationship to that of Lyotard, Baudrillard, Deleuze, and Guattari. Unlike these thinkers,
however, Foucault is explicitly and relentlessly institutional in his approach. Although there was
a period in which he focused on language, [FN103] Foucault returned to institutional analysis in
Discipline and Punish, [FN104] one of the most influential works in poststructural or postmodern
thought. On its face, it is a study of the modern penitentiary, which arose, according to *1421
Foucault, at the end of the eighteenth century as a substitute for punitive torture. [FN105] The
reformers of the period sought a system of equitable and symbolically meaningful punishments.
What resulted, however, was a set of highly structured institutions that regimented prisoners in
time and space, exercising an elaborate, detailed control over their bodies. [FN106] Foucault
links these institutions to a more general social trend manifested in schools, hospitals, and
factories, by which the populace is rendered docile and productive. [FN107] More generally
still, Foucault suggests that power in a modern bureaucratic-industrial state is not exercised by
open demonstration, but through a grid that underlies, and is reified in, a set of social institutions.
[FN108] Foucault does not ally himself with critical theory or any prescription for radical
change. As Nancy Fraser suggests, however, this alliance is implicit in the entire work; his
elusiveness is a matter of style, not substance. [FN109] Despite the absence of any explicit
prescriptions, Discipline and Punish may be read to assert that freedom from the comprehensive,
oppressive control mechanisms of modern society can only be achieved by transforming the
specific and apparently functional elements of modern social institutions. [FN110]

The most important modern representative of, or perhaps successor to, the Frankfurt school
is Jurgen Habermas. Habermas's principal theme is the nature of discourse, and his claim is that
human emancipation can be achieved through communicative action, that is, rational discourse
oriented toward mutual understanding. Although much of his work is epistemological, claiming
that rational discourse provides the only reliable test of truth, it has always contained heavily
political and institutional components. In The Structural Transformation of the Public Sphere,
[FN111] Habermas argues that rational discourse about public issues flourished in the private,
informal institutions of eighteenth-century Europe, such as coffee houses and salons, but was
overwhelmed by the modern institutions of the mass media and the social welfare state. [FN112]
This theme is reiterated in Habermas's most complete*1422 exposition of his rational discourse
theory, [FN113] in which he presents the colonization of the ‘lifeworld‘ as the preeminent threat
to the development of rational discourse. [FN114] He defines the lifeworld as the world of lived
experience, in which communicative action is possible. [FN115] Its colonization by the media
of money and power withdraws capitalist and bureaucratic institutions from their accessibility to
public debate and reevaluation within the lifeworld of individuals. [FN116]

This institutional theme becomes central in Habermas's most recent major work, Between
Facts and Norms. [FN117] Although still concerned with rational discourse, Habermas focuses
on the institutional arrangements that enable this discourse to proceed and to address the basic
problems of governing a complex society. These arrangements include informal institutions such
as private clubs, trade associations, and social movements, through which people on the
‘periphery‘ of the political system formulate, share, and express ideas. They also include the
major structural components of modern government, such as the legislature, courts, and
administrative agencies that occupy the center of the system. Rational decisionmaking, which he
definitively associates with democracy, requires that deliberative majorities of citizens should
rule. [FN118] Because the institutions in the center are specialized and complex, Habermas looks
to law as a means of regulating the interaction between them and the informal, peripheral
institutions of *1423 civil society. In order to ensure such rational decisionmaking, law
structures the public institutions and establishes a regime of rights that facilitates and protects
public access to these institutions. [FN119] Law thus possesses a dual character as a fact that
embodies state power and as a normative system that supports decisionmaking and rational
discourse. [FN120] In a recent article, Habermas extends this idea of law's dual character to an
analysis of multiculturalism, arguing that law can balance the demands of neutrality and
communitarianism by becoming decoupled from its nondeliberative majoritarian origins and
creating institutional structures that facilitate the preservation of cultural identities. [FN121]
 Other writers have focused more explicitly on the informal institutions that constitute
Habermas's public sphere. [FN122] These institutions exist outside the state, but represent
something other than economic action; they can thus be identified as the independent realm of
civil society. The private associations that de Tocqueville found flourishing in America clearly
belong within this category. [FN123] More important from the perspective of critical theory are
the new social movements, paradigmatically the European Greens, but also civil rights groups,
feminist groups, and gay-lesbian groups. [FN124] Interestingly, Roberto Unger, whose earlier
works started critical legal studies on its more abstract, conceptual course, offers a detailed
analysis of the potential impact of such groups in False Necessity. [FN125] Unger is no longer
content with analyzing the logical and moral inconsistencies of modern liberalism or with
envisioning new theories and institutions that should arise in its place. Rather, he is now
concerned with the actual mechanics of social transformation -- how new values are generated,
*1424 old ones altered, and changes implemented in concrete institutional contexts. [FN126]

IV. The Methodology and Substance of a New Synthesis of Discourse

A new synthesis for legal scholarship that combines existing subdisciplines into a
comprehensive framework of scholarly discourse must possess both a common methodology and
a common area of substantive debate about the law. Current trends in economics and continental
social thought -- the fields that generated the law and economics and critical legal studies
critiques of the legal process school -- suggest the possibility of a new, unified methodology for
legal scholarship based on the analysis of institutions. This new methodology would merge the
‘hard‘ social science of economics with the ‘soft‘ social sciences of organization theory and
political analysis; by doing so, it would dissolve the existing linkages between political
commitment and methodology that are accidents of history rather than logical necessities.
[FN127] The current trends in economics and social theory also suggest the possibility of a
unified set of substantive issues upon which scholarly debate could focus. These issues are
economic efficiency and social justice and, more particularly, the ways in which such
considerations are traded off or balanced in concrete institutional settings.

Post-Chicago School law and economics and post-critical legal studies, or outsider
scholarship, have already begun to move in this direction. Although legal process itself seems
beyond revival, the agenda it established provides a potential common ground for these two
movements in modern legal scholarship. This potential congruence does not necessarily imply a
comprehensive synthesis of legal scholarship, of course, since there are many other trends as
well. A number of these trends, however -- most notably the current developments in public law
[FN128] -- seem to be moving toward the same methodological*1425 stance and a focus on the
same substantive issues. Thus, a discourse broad enough to encompass two such opposing
movements as law and economics and outsider scholarship seems likely to include a variety of
other trends in legal scholarship as well.

A. The Methodology of a New Synthesis

 The new unified methodology that might emerge can be called the microanalysis of social
institutions, with the term ‘microanalysis‘ being applicable for two separate reasons. First, it
refers to the postmodern emphasis on the particular and its corresponding distrust of
generalization. [FN129] This choice of terminology is not meant to suggest that general
theories are to be avoided; [FN130] rather, the point is that discourses based on different
normative premises are most likely to converge when they address specific issues. Within a
given culture, the empirical grounding that specificity provides will tend to generate areas of
common understanding and communication, if not complete substantive agreement. Moreover,
the conceptual complexity of drawing upon several disciplines may become unmanageable
unless the range of discourse remains limited.

The second reason why the term microanalysis is applicable is that law is a medium by
which particularized and detailed strategies of governance are implemented. One can generalize
rather grandly about law, of course, but few believe that such generalizations provide a complete
account of the field. Although the decision to protect the environment, for example, is usually
regarded as belonging to a nonlegal realm of politics or policy, the specific rules by which this
protection is effected, the organization of the agency to which the task is assigned, the
procedures that the agency must follow, and the grounds on which its decisions can be
challenged are all matters for legal analysis. Because law involves aspects of social institutions
that operate at the particularized level, it can be described as a microanalysis of these institutions.

A new synthesis derived from post-Chicago School law and economics and outsider
scholarship, and focusing on the microanalysis of *1426 institutions, is likely to be organized
around a series of issues that track the agenda of the legal process school: the relative autonomy
of law, the rationality of institutions, the relative competence of different institutions, and the
role of rights in a democratic system. With respect to the autonomy of law, the concept of
microanalysis of institutions as a legal methodology is based on the idea that law does have some
conceptual coherence that defines it as a separate field, although not necessarily the quasi-
autonomous or ‘autopoietic system‘ proposed by the systems theorists. [FN131] Microanalysis
explicitly recognizes the influence of politics; the question is how politics interacts with law at
both the descriptive and normative levels. Determining the mere quantity of political influence,
however, does no more than attack the defunct legal process claim that law is politically neutral.
A much more productive inquiry concerns the way political forces act upon, or are translated
into, social institutions, the law that governs them, and the law that they establish and administer.
This approach is, in effect, an institutionally grounded analysis of the classic question concerning
the role of pluralistic and rational decisionmaking in a democratic system.

For economists, pluralistic decisionmaking is bound to produce suboptimal results, but the
question raised by North and Williamson is whether these results are nonetheless more desirable
than the market's operations, with its attendant transaction costs. [FN132] Outsider scholarship
agrees with economic analysis about the role of politics, but its assessment of pluralism is less
clear, varying with each scholar's view of whether American society can ever be freed of its
prejudices and oppressions. If it cannot, then pluralism is likely to be equally suboptimal because
it will continue to deny the meta-value of social justice; if it can, then administration and future
value formation might be entrusted to the pluralist political process. For both movements,
however, rational decisionmaking could conceivably produce a superior outcome -- economic
efficiency in one case, social justice in the other. The question they share is whether such
decisionmaking is possible, given the political forces that operate on institutions and the way that
public norms are created or distorted by these forces.

The legal process answer to this question -- really little more than a leap of faith -- was that
government institutions are rational and public-oriented. But this assumption has been the most
severely challenged of legal process claims. Economists generally take the position that the
individuals in these institutions are rational self-interest maximizers,*1427 but the institutions
themselves have no collective purpose; critical legal studies theorists depict institutions as either
purposefully or instinctively supporting existing power structures. Current trends in economics
and social theory acknowledge both these insights, but also seek to locate areas of relative
rationality or public orientation within public institutions by focusing on the specifics of the
interaction between law and politics. Thus, positive political theory regards public institutions as
rational in carrying out their strategic purposes, while outsider scholarship seeks mechanisms for
sensitizing these institutions to the demands of social justice. The transaction cost economics
emphasis on bounded rationality, Habermas's effort to establish the preconditions for rational
discourse in democratic institutions, and Unger's inquiry into the transformation of these
institutions by grassroots social movements all indicate an increasing focus on the role of
rationality in institutional settings.

The issue of rationality in public institutions raises a further question that is absolutely
central to the methodology of a prescriptive discipline such as law -- namely, to whom are the
scholars' prescriptions addressed? Legal process theory assumed that courts could be addressed
directly, as purely rational decisionmakers, and shied away from addressing other public
institutions, perhaps from an uncertainty about the proper mode of discourse. Much current
scholarship is simply unclear about its choice of audience. If public institutions are directed by
purely self-interested decisionmakers, as law and economics claims, on what basis can they be
urged to end their intervention in the market? [FN133] If these institutions are irretrievably
committed to an unjust power structure, as outsider scholarship asserts, on what basis can they be
urged to consider the demands of social justice? Are outsider narratives designed simply to
recruit members for social movements, or can they appeal to the conscience of public
decisionmakers?

A new synthesis in legal scholarship must confront this issue, and recent developments in
economics and social theory provide the methodology for doing so. Transaction cost economics
has begun to focus upon norm formation within institutions and the way in which an ethos of
cooperation, public orientation, and rational decisionmaking might develop. Habermas contends
that pluralism and rational decisionmaking will correspond once the preconditions for rational
discourse are achieved, while Luhmann and Teubner argue that norms are institutionalized by
political organizations. The legal process school believed that some of the issues could be
resolved through rules providing for fair representation in the legislature or reasoned argument in
a court. But Habermas's, Luhmann's, and Teubner's analyses, like those of law and economics
and outsider scholarship, reopens *1428 this question in a more comprehensive way by including
all the social forces, inequalities, and ideological commitments that legal process theory ignored.
The possibility for a new legal synthesis arises because economic analyses, social theory, and the
analysis of social oppression and exclusion can be combined to assess the way that political
forces act on legislatures, courts, and administrative agencies when they create or implement the
law. Through such a multifaceted analysis, scholars can begin to define the range of
recommendations that are conceptually accessible and politically possible for real-world
decisionmakers. Legal scholarship need not be limited to these recommendations, but the
definition of that range, the possibility of framing recommendations that fit within it, and an
understanding of the consequences of framing recommendations that lie outside it should go far
to resolving the current uncertainty about the audience for legal scholarship.

A better understanding of the audience for legal scholarship leads naturally to the
comparative analysis of institutions. Descriptive theory could be content merely with examining
the interplay of law and politics within a given institution. Legal scholarship is predominantly
prescriptive, however, and must choose the institution that best serves a particular purpose.
[FN134] For the legal process school, institutions possessed a fixed identity, and the task of
assigning roles to them was like a game of animal, vegetable, or mineral. Foucault, Habermas,
the transaction cost economists, the systems theorists, and the civil society theorists all treat
institutions as evolving responses to particular power relationships and social issues. This
approach opens a new realm of comparative legal analysis. It invites us to explore which
institutions are capable of rational or public-oriented decisionmaking under particular
circumstances, which will respond to a particular social movement, which are capable of
learning to increase their efficiency or their responsiveness, and how one institution responds to
the allocation of responsibility to another. Transaction cost economics and modern social theory
do not provide definitive answers to these complex questions, but they do suggest lines of
analysis that cut across prior methodological divisions and that can be effectively explored in
legal scholarship.

The role of rights -- a question that occupied so much of the legal process school's attention
-- is really no more than a component of this comparative institutional analysis. Rights are the
mechanism by *1429 which courts exercise authority; declarations of rights are the mechanism
by which other institutions, most typically the legislature, assign enforcement tasks to courts.
Although rights are undoubtedly important, they are only part of the much larger inquiry about
the design and operation of social institutions. The Chicago School of law and economics and the
critical legal studies movement remain curiously focused on rights and on the judiciary, but
contemporary trends suggest a broader perspective. Post-Chicago School law and economics and
outsider scholarship tend to instrumentalize rights, treating them as one means of achieving
desirable social purposes. Habermas, Luhmann, Teubner, and Foucault treat rights as
epiphenomenal, while differing about their value. There is undoubtedly an argument that rights
should be regarded as an overarching normative principle, but the instrumental approach opens
new and intriguing areas of inquiry and promises to wean legal scholarship from its somewhat
obsessive preoccupation with the judiciary. [FN135] The microanalysis of institutions can be
applied to an analysis of rights, but it can also be applied to legislatures, executive agencies, and
private firms, all of which are potentially equal or superior mechanisms to the courts for
achieving specified social purposes.

B. The Substantive Elements of a New Synthesis

A new synthesis of legal discourse not only must address all the issues on the legal process
agenda, but also must confront a basic question that legal process attempted to avoid: what are
the substantive values that legal institutions are designed to implement? The current trends --
post-Chicago School law and economics and outsider scholarship, as well as transaction cost
economics and critical social theory more generally -- all diverge on this question, despite their
methodological affinities. Economics continues to focus on efficiency, despite the broadening
scope of its inquiry; outsider scholarship and social theory are concerned with social justice. A
new synthesis of discourse is possible because this precise conflict animates debate over public
policy. In a world of limited resources and pluralist political action, the tradeoff between
efficiency and justice is a central consideration for public institutions. Current debates about
affirmative action, welfare benefits, and crime control, for example, can all be understood as
aspects of this underlying issue.

A new synthesis would not need to establish a fixed position on these issues. In fact, any
fixed position would be useless as a comprehensive framework, not only because it would
exclude too many people with divergent views, but also because it would foreclose the process of
debate that engages public policy issues and generates a *1430 productive scholarly discourse.
Legal process, although generally limited to mainstream opinion, covered a reasonably broad
range of liberal and conservative thought; it neither validated nor condemned the Warren Court,
for example, but instead offered a framework in which the legitimacy and efficacy of the Court's
opinions could be debated. A new synthesis needs to provide a similarly flexible approach, but
one broad enough to cover a range of issues and opinions that is even more expansive. It would
not choose between efficiency and social justice -- as both economics and critical theory do,
thereby restricting their areas of applicability. Rather, a new synthesis would use the
methodologies derived from both approaches to explore the development of a common metric by
which efficiency and social justice could be compared, balanced, and traded off in real
institutional settings.

The current debate about ensuring that poor communities have access to banking services
provides an important but manageable example. Advocates for these communities have
generated a number of proposals, including branch closing restrictions, [FN136] lifeline banking,
[FN137] and community reinvestment, [FN138] all of which are connected to the social justice
concerns of outsider scholarship. Although critical legal studies scholarship tends to avoid such
particularized reforms, outsider scholarship generally views them as means of using the existing
legal system to provide immediate and much-needed benefits to marginalized groups. [FN139]
The Chicago School approach generally opposes proposals of this kind because of their inherent
economic inefficiencies and the interest-group distortions in the political process that secure
*1431 their enactment. [FN140] Post-Chicago School economic analysis is more sympathetic,
acknowledging that the market failures in financial services justify the effort, but remaining
relatively critical of the particular proposals. [FN141] Overall, the debate proceeds in the
disconnected, ideological manner that characterizes contemporary legal scholarship and that
stems from its existing disarray.

A new synthesis of discourse would provide a framework for debating the relative values of
justice and efficiency in this context. Any program that provides additional banking services to
the poor is likely to be implemented by a set of existing governmental and private institutions --
the bank regulators and the banks. The issue could theoretically be resolved by recourse to more
grandiose, ideological solutions, such as socialism or complete deregulation, and scholarly
analysis of these solutions might yield interesting insights. But the microanalysis of existing
institutions is more practical, at least in the short run, and more amenable to the specifically legal
approach of framing recommendations to existing policymakers. An institutional, microanalytic
approach would explore the gains in social justice that particular programs could achieve when
implemented by existing regulatory agencies and imposed upon existing banks, and it could then
compare these with the efficiency costs that would result from the programs'
implementation. Although a regulatory program might increase both efficiency and justice in a
case of market failure -- or decrease both in a case of regulatory failure -- there is likely to be a
tradeoff between the two. The problem is to decide how much justice should be purchased at the
cost of how much efficiency.

This matter is difficult to address in abstract terms, but a new, legal process-derived
synthesis would concretize the issue in a comparative context. Certain programs will be better
than others; they will provide greater benefits for the same cost, the same benefits at lower cost,
or perhaps even greater benefits at lower cost. Such comparisons do not provide definitive
answers to the tradeoff between justice and efficiency, but they nonetheless convey important
insights. The recognition that the choice among alternatives not only depends on the general
design of the program, but also on the way the program is implemented by existing institutions,
will generate further insights. Lifeline banking may be a promising idea, but the bounded
rationality of banking regulators may render them unable to set prices at the proper
level. Community reinvestment might be more effective than it *1432 would initially appear to
be if banks were to hire more people from the community as loan officers. Branch closing
restrictions might effect a salutary change on banks and regulators by sensitizing them to the
problems of poor communities, even if these restrictions are not particularly beneficial otherwise.
These interactions between program design and implementation only become apparent through
microanalysis of the institutions involved.

Another question that a new synthesis of discourse could address is the choice among the
various political and social institutions that can deal with the tradeoff between justice and
efficiency. Most programs that provide banking services to the poor involve a cross-subsidy of
some sort, which economists agree is less efficient than a direct subsidy to the beneficiaries of
the program. [FN142] When viewed in light of real-world politics, however, the argument for
direct subsidies seems somewhat disingenuous, because such subsidies must generally be funded
through the general tax levy and are thus much more difficult to enact than cross-subsidies. A
microanalysis of institutions could include such political realities of enactment as well as the
political realities of implementation. This possibility is connected to the question of the audience
for legal scholarship. An argument for direct subsidies addressed to a hypothetical, rational
decisionmaker is certainly informative. But it is at least equally informative to address real-world
decisionmakers, thereby factoring the political realities of enactment into the analysis.

Still another aspect of institutional microanalysis addresses the institutional context of social
programs in general and, in so doing, offers the possibility of identifying a common metric for
equity and efficiency considerations. Although there may be no theoretical way to determine
how much efficiency should be traded for a given amount of social justice, even if both values
could be quantified and measured, institutionally embedded understandings might well facilitate
a pragmatic, value-rational discourse about this tradeoff. Most people would agree that the
complete absence of financial services in inner-city neighborhoods would be undesirable and that
a general collapse of the banking system would be equally undesirable. Beginning from these
fixed points, most people might agree further that small or questionable gains in social justice are
not worth exchanging for serious destabilization of the banking system, but that large gains are
worth minor inefficiencies. The microanalysis of institutions provides a means of framing
relative judgments of this nature and thus a means *1433 of comparing equity and efficiency
gains in a particularized social setting.

This type of value-rational discourse is central to the enterprise of legal

scholarship. Although legal process theorists avoided substantive value choices, they fully
understood the close relationship between positive and normative law. Fuller argued that law is
incoherent unless it embodies certain values, [FN143] while Bickel, Black, and others insisted
that constitutional interpretation must rely on normative judgments to produce determinate
results. [FN144] The sophistication of this view, however, was counterbalanced by the naivete of
the legal process assertion that politically neutral value choices existed; the subsequent attack on
this all-too-tempting target submerged the insight that legal process had achieved, replacing it
with the positivism of law and economics and the relentless normativity of critical legal studies.
Transaction cost economics and continental social theory point toward a scholarly vocabulary
that captures the interplay of facts and norms, to use Habermas's terms. Thus, the debate about
efficiency and equity is not only a debate about the values that underlie the law, but also about
the concepts of law and legality themselves. In some sense, law is the way in which resource
allocation issues are balanced against fairness. An approach that analyzes this process in
coherent terms would truly serve as a new synthesis for scholarly discourse about law.

V. The Value of a New Synthesis

 The possibility that a new synthesis of scholarly discourse could arise does not demonstrate
that such a synthesis is desirable. At some level, of course, there is no need for such a
demonstration; the mere observation of the possibility tells us something about the theoretical
structure of the scholarship and its various components. But as Imre Lakatos points out,
scholarship tends to proceed by constructing research programs, [FN145] and the question is
whether legal scholars should direct their efforts toward achieving this new synthesis of
institutional microanalysis. Methodological questions are inherently normative to some degree --
scholars, no matter how much objectivity they claim for their results, must choose, as a
normative matter, what kind of research they ought to do. The significance of this normativity is
amplified in legal scholarship, whose substantive topic is what society in general ought to do.

A new synthesis of legal scholarship might be normatively and epistemologically

objectionable if it were purchased at the cost of excluding certain segments of the present
diversity of voices. Paul Carrington*1434 proposes that critical legal studies be excluded from
the legal academy, [FN146] and Owen Fiss decries both critical legal studies and the economic
analysis of law for their corrosive effects on public morality. [FN147] Their targets, critical legal
studies scholars and law and economics scholars, might well exclude each other, [FN148] and
presumably much of standard legal scholarship as well, including that of Carrington and Fiss.
Although the process by which exclusion, or even a diminishment of influence, might be effected
is not obvious at present, it must never be forgotten that scholarly debates involve issues of
power. One need not go so far as Foucault [FN149] to recognize that scholars representing
particular positions -- often but not always those of the reigning political elites -- have been able
to use the mechanisms of hiring, promotion, publication, and research support to exclude their
opponents from the university and from academic discourse. Such a campaign of exclusion is
morally objectionable because it circumscribes scholarly debate without reference to the merits
of the excluded positions. Even after one abjures the use of power, however, exclusion remains
an unpromising path to synthesis, because one is unlikely to persuade potentially excluded
groups that the synthesis is preferable to the existing situation, even if that situation is diffuse or
cacophonous. As a practical matter, convincing the proponents of any major subdiscipline of
current legal scholarship to abandon their beliefs would be unlikely because these components
possess or reflect larger constituencies. As an epistemological matter, such efforts at persuasion
are unlikely to succeed because law, like other human sciences, does not provide definitive tests
of validity. [FN150]

Assuming then that a new synthesis cannot be achieved by exclusion, its effects are likely to
be, at worst, benign. To make such a synthesis worth striving for, however, it needs to promise
more than harmlessness; otherwise, there is no persuasive reason to favor a unified framework
over pluralism. One might argue that civility, mutual respect, and the preservation of the
academic community are reasons for seeking a new synthesis, but several scholars have argued
that these virtues are consistent with pluralism as well. [FN151] In fact, the *1435 breakdowns in
civility that have occurred in law schools do not seem particularly severe -- they have stopped
well short of violence -- and those that have occurred may not stem from differences in scholarly
methodology. [FN152] Furthermore, even the existence of more severe breakdowns would not
prove that scholars who use different methodologies could not coexist, or even cooperate, once
the inevitability of pluralism was acknowledged and behavior patterns had evolved to reflect that
recognition.

There is, however, a separate reason for pursuing a synthesis of scholarly discourse. It
involves the underlying purpose of legal scholarship. Most legal scholarship consists of
prescriptions or recommendations to public decisionmakers [FN153] -- typically, how to decide
a case or set of cases, but also how to draft a statute or a regulation. The field also includes
historical, sociological, and philosophic analyses of legal issues, but prescriptive discourse is
what distinguishes legal scholarship and requires it to deploy a methodology distinct from those
of other disciplines.

Norms are sometimes treated as mere matters of opinion, but this approach relies on an
unjustified comparison to the standards of validity used in the natural sciences. [FN154] Weber
discussed a rationality of values, as well as a rationality of instrumental purposes, [FN155] and
Habermas extended this insight into a general theory of rational discourse in which normatively
regulated action possesses a separate form of truth, as valid as the truth possessed by descriptions
of physical reality. [FN156] Applied to legal scholarship, this theory means that the prescriptive
statements characteristic of the field are not simply the opinions of their authors, to be accepted
or rejected on the basis of one's own personal agreement. Neither are they exclusively advice to
the decisionmakers they address, to be judged according to their real-world effects. Instead, they
are a mode of understanding, an aspect of what Habermas calls communicative action. [FN157]
Law is an inherently normative enterprise; it tells citizens how they should behave, government
officials how they should exercise their power, and society in general how it should organize
itself. Engaging in normative debate about the law is the basic way of understanding law itself,
which is *1436 why legal scholarship is characteristically and uniquely prescriptive. A purely
external description of the law, using the methodologies of history, sociology, or anthropology,
tells us a good deal, but leaves still more unsaid. To understand the legal system fully, scholars
must participate in its inherently normative enterprise. They do so by framing prescriptions about
how the law should tell citizens to behave, public officials to decide, and society to organize.
Only through full engagement in the normative enterprise of law can the scholar truly understand
the meaning of law for those who create, interpret, and respond to it. This mode of understanding
is what Weber called verstehen -- the understanding of the participant, the person who
experiences the phenomenon in question, as opposed to the understanding of the outside
observer. [FN158]

The virtue of a comprehensive synthesis for legal scholarship is that it provides a framework
for this normative debate, and thus a basic path to an understanding of the subject matter. The
more capacious and inclusive the framework, the more powerful a mode of understanding it
becomes. If the normative debate of legal scholarship is limited to a subset of governance issues
or political viewpoints, as legal process was, it provides understanding only within that limited
range. Moreover, it may be impoverished even within that range because it fails to explore the
kinds of disconcerting issues that can lead to deeper insight. The failure of the legal realists and
legal process school to include and debate American radicalism, for example, blinded them to
more comprehensive understanding of the relationship between law and political power. In
addition, it isolated these two movements from the rich tradition of continental social thought
that flourished throughout their existences, making them seem naive and parochial to anyone
familiar with that tradition. Similarly, the failure of legal realism and legal process to include
sociological analysis of legal behavior isolated them from leading American scholars, such as
Talcott Parsons, whom continental thinkers found so useful in constructing their own theories of
law. [FN159]

The current multiplicity of voices and methods is thus a source of potential strength for legal
scholarship. The benefits from this multiplicity are accessible through a comprehensive
framework -- not a framework that values only certain views, but one that allows all current
views to interact and to participate in the normative debate. Without such a framework, legal
scholarship continues to possess the moral virtue of nonexclusion, but it lacks the
epistemological virtue of using multiplicity as a path to understanding. Legal scholarship,
because of the nature of normative discourse, benefits directly from the interaction of different
methodologies. To the extent that scholars with *1437 different views and approaches can
communicate with one another, the normative debate becomes richer and the understanding of
the legal system that it generates is correspondingly deepened.

The microanalysis of institutions has promise as a comprehensive framework for this

interaction because it is both fecund and neutral. It is fecund in that it represents a developing
trend in many of the disciplines that have spawned the various movements within legal
scholarship; there is a growing sense that institutional behavior represents a frontier where there
is much to be discovered and that has only begun to be explored. By debating and analyzing
how competing norms -- specifically, the norms of efficiency and social justice -- are instantiated
in legal institutions, legal scholarship can advance our collective understanding about how these
institutions function, how they create and implement the law, and what they mean for our society
in a way that no other discipline can duplicate.

The microanalysis of institutions is neutral because it offers equal promise to the different
movements within legal scholarship. Neutrality has become a dirty word because of the way it
was used by the legal process school. Wechsler was simply wrong to say that an opposite
decision in Brown would have been neutral, [FN160] but he was correct in identifying the
desirability of the concept. As all his critics have noted, however, absolute neutrality does not
exist. [FN161] The most that can be expected is relative neutrality -- that is, neutrality with
respect to existing viewpoints and methods. The microanalysis of institutions achieves this
relative neutrality; it does not favor law and economics over outsider scholarship, nor outsider
scholarship over law and economics, because it is an equally promising method for both
approaches. That type of neutrality is needed for a new synthesis of discourse, one that will
advance our understanding of the legal system through the participatory process of
comprehensive normative debate.
 Conclusion

The legal process school was the last unified approach to legal scholarship. After it
succumbed to attacks from law and economics and critical legal studies, the field broke apart into
various subdisciplines that offered many insights but were unable to communicate with one
another. Although that situation continues to this day, recent trends in post-Chicago School law
and economics and in post-critical legal studies, or outsider scholarship -- as well as
developments in economics and social theory, the fields that underlie these legal subdisciplines --
suggest an unrecognized convergence around issues of institutional analysis. This Commentary
suggests the possibility of a new *1438 synthesis that would address the legal process agenda
with approaches derived from these subdisciplines and their underlying fields. It further suggests
that the methodology of the new synthesis would be the microanalysis of institutions and that its
substance would be the interplay between efficiency and social justice considerations. Whether
such a synthesis is possible remains an open question, but it seems clear that it would offer
enough intellectual and social benefits to merit further exploration. The various subdisciplines of
legal scholarship have exhibited an open hostility or a studied indifference to one another; it is
now time to consider the possibility of an interchange among them.

[FNa]. Professor of Law, Boalt Hall School of Law, University of California at Berkeley.

[FN1]. The term “synthesis” as used here refers to a conscious effort to combine two identifiable
and previously antagonistic approaches to a common subject matter. This concept is derived
from Hegel, see Georg W.F. Hegel, Hegel's Science of Logic 793-818 (H.D. Lewis ed. & A.V.
Miller trans., 2d ed. 1976), but the only claim being made here is that Hegel's approach is useful
for the sociology of knowledge.

[FN2]. See William C. Chase, The American Law School and the Rise of Administrative
Government 23-59 (1982); Robert Stevens, Law School: Legal Education in America from the
1850s to the 1980s, at 51-53 (1983).

[FN3]. See Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 1 (1983); Dennis
Patterson, Langdell's Legacy, 90 Nw. U. L. Rev. 196, 200-01 (1995); John H. Schlegel,
Langdell's Legacy or, The Case of the Empty Envelope, 36 Stan. L. Rev. 1517, 1520 (1984)
(book review); G. Edward White, The Impact of Legal Science on Tort Law 1880-1910, 78
Colum. L. Rev. 213, 220 (1978). In a recent article, Anthony Sebok suggests that the formalists
were committed to a positivist approach to law. See Anthony Sebok, Misunderstanding
Positivism, 93 Mich. L. Rev. 2054, 2065-72 (1995). Although the formalists, with their
aspirations (we would now call them pretensions) to make law a scientific discipline, rejected
natural or divinely inspired law, they seemed to believe that general principles were embedded in
the body of judicial decisions by a gradual process far removed from the command of the
sovereign. Paul Carrington also notes a connection between formalism and positivism, but he
sees this connection in the claim that law is separate from politics, not in the more specific
assertion that law emerges from identifiable commands. See Paul Carrington, Hail! Langdell, 20
Law & Soc. Inquiry 691, 707-10 (1995).

[FN4]. See, e.g., John C. Gray, The Nature and Sources of the Law 291 (1909) (‘[T]o introduce
any notion of nicht positivisches Recht into the conception of the Law is to take a step backward
in jurisprudence.‘); Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469-74
(1897) (discussing the connection between law and historical developments as a ‘first step
toward enlightened scepticism‘ about the value of legal rules); Roscoe Pound, Mechanical
Jurisprudence, 8 Colum. L. Rev. 605, 606 (1908) (noting that ‘it is well to remember that law
must not become too scientific for the people to appreciate its workings‘ or too scientific to serve
the ends of justice).

[FN5]. As Justice Holmes argued, law ‘does not exist without some definite authority behind it.
The common law, so far as it is enforced in a state ... is not the common law generally but the
law of that State existing by the authority of that State ....‘ Black & White Taxicab & Transfer
Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J.,
dissenting); see Jerome Frank, Law and the Modern Mind 32-33 (1930) (arguing that common
law does not preexist judicial decisions, but is the product of those decisions or a prediction
about them); Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L.
Rev. 809, 837 (1935) ( ‘Law commands obedience not because of its goodness, but because of
the power behind it.‘).

[FN6]. See Alexander M. Bickel, The Least Dangerous Branch 1-34 (1962); Charles L. Black,
Jr., The People and the Court 1-33 (1960); Herbert Wechsler, Toward Neutral Principles of
Constitutional Law, 73 Harv. L. Rev. 1, 9 (1959).

[FN7]. See Lon L. Fuller, The Morality of Law 152-85 (1964); Henry M. Hart, Jr. & Albert M.
Sacks, The Legal Process 696, 1009-10, 1111 (William Eskridge, Jr. & Philip P. Frickey eds.,
1994); David Shapiro, The Choice of Rulemaking or Adjudication in the Development of
Administrative Policy, 78 Harv. L. Rev. 921, 926-42 (1965). The Hart and Sacks materials were
developed between 1955 and 1958 and circulated widely in the years that followed. See William
Eskridge, Jr. & Philip P. Frickey, An Historical and Critical Introduction to the Legal Process, in
Hart & Sacks, supra, at li, lxxxvii-xcvi, cii-civ.

[FN8]. Wechsler, supra note 6, at 17; see also Kent Greenawalt, The Enduring Significance of
Neutral Principles, 78 Colum. L. Rev. 982, 1021 (1978) (discussing the value of neutral
principles ‘[a]s a call for integrity and reason in legal processes‘).

[FN9]. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 365-66
(1978). Although published in 1978, this article was a product of the legal process era, written in
1957 and revised in 1959 and 1961. Various drafts circulated widely, and the article exercised
considerable influence during that period. See Kenneth I. Winston, Introduction to Fuller, supra,
at 353.
[FN10]. Kelsen argues that law consists entirely of the sovereign's commands and does not
embody any normative principle. See Hans Kelsen, General Theory of Law and State 15-28
(Anders Wedberg trans., 1945) [hereinafter Kelsen, General Theory]; Hans Kelsen, Pure Theory
of Law 1-58 (Max Knight trans., 2d ed. 1967).

[FN11]. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The integration of a
human rights orientation with political process arguments received its first comprehensive
justifications in Jesse Choper, Ju dicial Review and the National Political Process 4-59 (1980)
and John H. Ely, Democracy and Distrust 73-179 (1980), but was implicit all along in the legal
process position favoring civil rights over other constitutional guarantees, see Paul Freund, The
Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 545-51 (1951); Herbert Wechsler, The
Political Safeguards of Federalism: The Role of the States in the Composition and Selection of
the National Government, 54 Colum. L. Rev. 543, 578 (1954) (arguing that the Supreme Court
does not need to safeguard federalism).

[FN12]. See Bickel, supra note 6, at 29-33; Black, supra note 6, at 64-68; Wechsler, supra note 6,
at 10-20.

[FN13]. Not only is the content of law -- in this case constitutional law -- a blend of positive and
normative considerations, but the concept of law itself also combines these elements. This issue
was the basis of Fuller's famous debate with H.L.A. Hart. See Fuller, supra note 7, at 133-45.

[FN14]. See Hart & Sacks, supra note 7, at 693-97; Fuller, supra note 9, at 365-72; Shapiro,
supra note 7, at 942-58.

[FN15]. See Bickel, supra note 6, at 16-23.

[FN16]. See id . at 29-33; Black, supra note 6, at 34-55; Paul J. Mishkin, The Supreme Court,
1964 Term -- Foreword: The High Court, the Great Writ, and the Due Process of Time and Law,
79 Harv. L. Rev. 56, 60-62 (1965).

[FN17]. See Bickel, supra note 6, at 49-65, 124-33. Second place went to James B. Thayer, a
critic of formalism and a progenitor of the legal process approach. See id. at 35-44. Bickel's
views were in turn attacked, again within the commodious confines of the legal process school.
See Gerald Gunther, The Subtle Vices of the ‘Passive Virtues‘ -- A Comment on Principle and
Expediency in Judicial Review, 64 Colum. L. Rev. 1 passim (1964).

[FN18]. See Richard Posner, The Economic Analysis of Law 152-54 (1st ed. 1972); Ronald
Coase, The Federal Communications Commission, 2 J.L. & Econ. 1 passim (1959); Arthur
Devany, Ross Eckert, Charles Meyers, Donald O'Hara & Richard Scott, A Property System for
Market Allocation of the Electromagnetic Spectrum -- A Legal-Economic-Engineering Study, 21
Stan. L. Rev. 1499, 1505-12 (1969); Richard Epstein, A Common Law for Labor Relations: A
Critique of the New Deal Labor Legislation, 92 Yale L.J. 1357, 1359 (1983); Daniel R. Fischel,
Efficient Capital Market Theory, the Market for Corporate Control, and the Regulation of Cash
Tender Offers, 57 Tex. L. Rev. 1, 24-26 (1978); Jonathan Macey, Special Interest Groups and
the Judicial Function: The Dilemma of Glass-Steagall, 33 Emory L.J. 1, 2 (1983); Kenneth Scott,
In Quest of Reason: The Licensing Decisions of the Federal Banking Agencies, 42 U. Chi. L.
Rev. 235, 283-96 (1975).

[FN19]. See James M. Buchanan & Gordon Tullock, The Calculus of Consent 3-39 (1962);
Morris P. Fiorina, Congress: Keystone of the Washington Establishment 39-40 (1977); David R.
Mayhew, Congress: The Electoral Connection 13 (1974); Dennis Mueller, Public Choice II 1-6
(1989). Many works of legal scholarship have adopted this approach. See, e.g., Peter H. Aranson,
Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 Cornell L. Rev. 1,
41-45 (1982); Jonathan R. Macey & Geoffrey P. Miller, Origin of the Blue Sky Laws, 70 Tex. L.
Rev. 347 passim (1991) (describing blue sky laws as a response to interest group pressure, rather
than an effort to protect investors). For a general discussion of this point, see Daniel A. Farber &
Philip P. Frickey, Law and Public Choice 3, 20-23 (1991).

[FN20]. See Aranson, Gellhorn & Robinson, supra note 19, at 39.

[FN21]. See William A. Niskanen Jr., Bureaucracy and Representative Government 38-42
(1971); Gordon Tullock, The Politics of Bureaucracy 134-36, 167-70 (1965); Jean-Luc Migue &
Gerard Belanger, Toward a General Theory of Managerial Discretion, 17 Pub. Choice 27 passim
(1974); Paul Wyckoff, The Sample Analytics of Slack-Maximizing Bureaucracy, 67 Pub. Choice
35, 36-38 (1989).

[FN22]. For some efforts to develop a public choice theory of judicial behavior, see Rafael Gely
& Pablo T. Spiller, The Political Economy of Supreme Court Constitutional Decisions: The Case
of Roosevelt's Court-Packing Plan, 12 Int'l Rev. L. & Econ. 45, 46-48 (1992); William Landes &
Richard Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & Econ.,
875, 885-87 (1975); and Richard A. Posner, What Do Judges and Justices Maximize? (The Same
Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1, 13-15, 31-39 (1993).

[FN23]. See, e.g., Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 544-51
(1983) (recommending an interpretive strategy to judges based on the facts that statutes are
always bargains and that legislatures do not have designs, only outcomes); Jonathan R. Macey,
Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group
Model, 86 Colum. L. Rev. 223, 240-50 (1986) (recommending that judges read rent-seeking or
private-regarding statutes from a public-regarding perspective); Richard A. Posner, Economics,
Politics, and the Reading of Statutes and the Constitution, 49 U. Chi. L. Rev. 263, 272-82 (1982)
(recommending various interpretive strategies based on a recognition that legislatures act from a
multiplicity of motives, some of which involve concessions to narrow interest groups).

[FN24]. See, e.g., Richard A. Posner, Takings 93-104 (1985); Posner, supra note 18, at 156-72;
Geoffrey P. Miller, The True Story of Carolene Products, 1987 Sup. Ct. Rev. 397, 422-28.
[FN25]. Instead, the economic analysis of politics has focused heavily on the legislature, since
legislative action is readily modeled as an effort to maximize the chance of reelection. See, e.g.,
Fiorina, supra note 19, passim; Mayhew, supra note 19, passim; cf . Mancur Olson, The Logic of
Collective Action passim (1965) (discussing the influence of interest groups on the electoral
process).

[FN26]. See Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 30 (1977);
Roberto M. Unger, The Critical Legal Studies Movement 5-8 (1986); Gerald E. Frug, The City
as a Legal Concept, 93 Harv. L. Rev. 1057, 1059-62 (1980) (arguing that the political position of
cities is a reflection of power relationships, not neutral principles of local rule); Duncan
Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205, 211-21 (1979).

[FN27]. See Unger, supra note 26, at 5-8; Clare Dalton, An Essay in the Deconstruction of
Contract Doctrine, 94 Yale L.J. 997, 1002-03 (1985); Gary Peller, The Metaphysics of American
Law, 73 Cal. L. Rev. 1151, 1152 (1985); Joseph W. Singer, The Player and the Cards: Nihilism
and Legal Theory, 94 Yale L.J. 1, 5-7 (1984); Mark V. Tushnet, Following the Rules Laid
Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 824-27 (1983).

[FN28]. See Max Horkheimer & Theodor W. Adorno, Dialectic of Enlightenment 20-23 (John
Cumming trans., 1972).

[FN29]. See Jacques Derrida, Edmund Husserl's Origin of Geometry: An Introduction 66-76
(John P. Leavey Jr. trans., 1989); Jacques Derrida, Of Grammatology 11-26 (Gayatri C. Spivak
trans., 1976); Jacques Derrida, Writing and Difference 278-82 (Alan Bass trans., 1978).

[FN30]. See Mark Tushnet, Red, White and Blue 191-99 (1988).

[FN31]. For critical legal studies attacks on law and economics, see Mark Kelman, Choice and
Utility, 1979 Wis. L. Rev. 769 passim, and Duncan Kennedy, Cost Benefit Analysis of Eminent
Problems: A Critique, 33 Stan. L. Rev. 387 passim (1981). For law and economics attacks on
critical legal studies, see Richard Posner, The Problems of Jurisprudence 153-57 (1990), and
Lewis Kornhauser, The Great Image of Authority, 36 Stan. L. Rev. 349, 379-87 (1984). See
generally Linz Audain, Critical Legal Studies, Feminism, Law and Economics, and the Veil of
Intellectual Tolerance: A Tentative Case for Cross-Jurisprudential Dialogue, 20 Hofstra L. Rev.
1017, 1087-90 (1992) (describing the mutual hostility of the two movements).

[FN32]. See Donald N. McCloskey, If You're So Smart 5-9 (1990); Donald N. McCloskey,
Knowledge and Persuasion in Economics 3-4 (1994); Donald N. McCloskey, The Rhetoric of
Economics 5-11 (1985).

[FN33]. See Jurgen Habermas, Theory and Practice 253-82 (John Viertel trans., 1973); Herbert
Marcuse, One Dimensional Man 144-99 (1964).
[FN34]. See Gary Minda, Postmodern Legal Movements 208-23 (1995); Donald N. Gjerdingen,
The Future of Legal Scholarship and the Search for a Modern Theory of Law, 35 Buff. L. Rev.
381, 386-97 (1986); Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86
Mich. L. Rev. 1835, 1847-53 (1988).

[FN35]. See Max Lerner, America as a Civilization, Volume One: The Basic Frame 209-38
(1957); Alexis de Tocqueville, Democracy in America 612-14 (J.P. Mayer ed. & George
Lawrence trans., Doubleday 1969) (1835); Gordon S. Wood, The Radicalism of the American
Revolution 189-212 (1991).

[FN36]. Two of the most sophisticated applications of the legal process approach to
constitutional law, for example, were published in 1980. See Choper, supra note 11; Ely, supra
note 11. The law and practical reason movement draws much of its inspiration from the legal
process school. See Anthony T. Kronman, Alexander Bickel's Philosophy of Prudence, 94 Yale
L.J. 1567, 1567-73 (1985).

[FN37]. See Stephen Breyer, Regulation and Its Reform 15-35, 341-68 (1982) [[[hereinafter
Breyer, Regulation]. For a more recent explication of Justice Breyer's views, see Stephen Breyer,
Breaking the Vicious Circle: Toward Effective Risk Regulation 55-81 (1993).

[FN38]. See Breyer, Regulation, supra note 37, at 271-84; Economics of the Environment passim
(Robert Dorfman & Nancy S. Dorfman eds., 2d ed. 1977); T.H. Tietenberg, Emissions Trading:
An Exercise in Reforming Pollution Policy passim (1985); Bruce A. Ackerman & Richard B.
Stewart, Reforming Environmental Law, 37 Stan. L. Rev. 1333, 1341-51 (1985); Richard B.
Stewart, Regulation, Innovation, and Administrative Law: A Conceptual Framework, 69 Cal. L.
Rev. 1256, 1263-77 (1981). Countervailing views on this issue not only emphasize the
importance of the debate on appropriate regulatory approaches, but also introduce additional
legal process themes such as the political legitimacy and comparative competence of various
institutions in implementing these approaches. See Steven Kelman, What Price Incentives?
Economists and the Environment 27-88 (1981); Howard Latin, Ideal Versus Real Regulatory
Efficiency: Implementation of Uniform Standards and ‘Fine-Tuning‘ Regulatory Reforms, 37
Stan. L. Rev. 1267, 1292-1314 (1985).

[FN39]. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car
Negotiations, 104 Harv. L. Rev. 817, 863-71 (1991) (new car purchases); Robert D. Cooter &
Edward L. Rubin, A Theory of Loss Allocation for Consumer Payments, 66 Tex. L. Rev. 63, 97-
123 (1987) (consumer payments); Michael Klausner, Market Failure and Community
Investment: A Market-Oriented Alternative to the Community Reinvestment Act, 143 U. Pa. L.
Rev. 1561, 1580-92 (1995) (inner-city residential mortgage markets).

[FN40]. See Posner, supra note 18, at 98-102; William M. Landes & Richard A. Posner,
Adjudication as a Private Good, 8 J. Legal Stud. 235, 236-42 (1979); Richard A. Posner &
Andrew M. Rosenfield, Impossibility and Related Doctrine in Contract Law: An Economic
Analysis, 6 J. Legal Stud. 83, 118 (1977); Paul H. Rubin, Why Is the Common Law Efficient?, 6
J. Legal Stud. 51, 61 (1977).

[FN41]. See supra pp. 1399 1400.

[FN42]. See Robert Cooter, Stephen Marks & Robert Mnookin, Bargaining in the Shadow of the
Law: A Testable Model of Strategic Behavior, 11 J. Legal Stud. 225, 242-47 (1982); Ronald J.
Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between
Lawyers in Litigation, 94 Colum. L. Rev. 509, 550-57 (1994); Louis Kaplow & Steven Shavell,
Legal Advice About Information to Present in Litigation: Its Effects and Social Desirability, 102
Harv. L. Rev. 567, 606-15 (1989). See generally Robert D. Cooter & Daniel L. Rubinfeld,
Economic Analysis of Legal Disputes and Their Resolution, 27 J. Econ. Literature 1067, 1067-
86 (1989) (surveying studies).

[FN43]. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation
Decisions, 101 Yale L.J. 331, 353-79 (1991); William N. Eskridge, Jr. & John A. Ferejohn, The
Article I, Section 7 Game, 80 Geo. L.J. 523, 528-33 (1992); William N. Eskridge, Jr. & Philip P.
Frickey, The Supreme Court, 1993 Term -- Foreword: Law as Equilibrium, 108 Harv. L. Rev.
27, 30-42 (1994); John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory
Interpretation, 12 Int'l Rev. L. & Econ. 263, 276-79 (1992); Daniel B. Rodriguez, The Positive
Political Dimensions of Regulatory Reform, 72 Wash. U. L.Q. 1, 42-51 (1994); Pablo T. Spiller,
Politicians, Interest Groups, and Regulators: A Multiple-Principals Agency Theory of
Regulation, or ‘Let Them Be Bribed‘, 33 J.L. & Econ. 65, 65-72 (1990).

[FN44]. For an overview of the theoretical literature on the application of game theory to the
political process, see Herve Moulin, Game Theory for the Social Sciences passim (1981), Peter
C. Ordeshook, Game Theory and Political Theory 222-35 (1986), and Peter C. Ordeshook, A
Political Theory Primer passim (1992).

[FN45]. See Bruce A. Ackerman, Reconstructing American Law 46-71 (1984).

[FN46]. See Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics,
and Public Policy 3-13, 53-150 (1994).

[FN47]. See James Q. Wilson, The Politics of Regulation, in The Politics of Regulation 357,
370-72 (James Q. Wilson ed., 1980).

[FN48]. See Komesar, supra note 46, at 271 (‘ Institutional analysis must be comparative. No
matter how sophisticated, single institutional analysis is an inefficient substitute; it cannot
evaluate the relative merits of imperfect institutional alternatives.‘). Another interesting approach
is Jane Schacter's concept of metademocratic statutory interpretation, embodying process-
oriented concepts such as the preservation of political action, antisubordination, partnership with
the politic branches, and more relevantly here, judicial constraint based on public choice
considerations. See Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in
Statutory Interpretation, 108 Harv. L. Rev. 593, 613-46 (1995).

[FN49]. This point has been emphasized by critical race theory, see Kimberle Crenshaw, Race,
Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101
Harv. L. Rev. 1331, 1356 (1988) ( ‘While Critical scholars claim that their project is concerned
with domination, few have made more than a token effort to address racial domination
specifically, and their work does not seem grounded in the reality of the racially oppressed.‘);
Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities
Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 304, 307 (1987) (‘The CLS critique of rights and rules is
the most problematic aspect of the CLS program, and provides few answers for minority scholars
and lawyers.‘); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from
Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 405 (1987) (‘CLS has ignored the degree
to which rights-assertion and the benefits of rights have helped blacks, other minorities, and the
poor.‘), and feminist theorists as well, see Mary Joe Frug, A Postmodern Feminist Legal
Manifesto (An Unfinished Draft), 105 Harv. L. Rev. 1045, 1058 (1992) (asserting that the
‘conviction [of radical feminists] that women are defined as women by their sexual
subordination to men leads them to argue that sex workers should be extricated from their
condition rather than supported in their work‘); Martha R. Mahoney, Legal Images of Battered
Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 2 (1991) (‘Serious harm to
women results from the ways in which law and culture distort our experience.‘).

[FN50]. See Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 3-6
(1987); Patricia J. Williams, The Alchemy of Race and Rights 61-63, 166-68 (1991); Alex M.
Johnson, Jr., How Race and Poverty Intersect to Prevent Integration: Destabilizing Race as a
Vehicle to Integrate Neighborhoods, 143 U. Pa. L. Rev. 1595, 1609-16 (1995); Charles R.
Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39
Stan. L. Rev. 317 passim (1987).

[FN51]. See Derek Bok, Reflections on the Distinctive Character of American Labor Law, 84
Harv. L. Rev. 1394, 1417-20 (1971).

[FN52]. See, e.g., Regina Austin, Sapphire Bound!, 1989 Wis. L. Rev. 539, 563-64 (discussing
the need for courts to be sensitive to the realities of minority group members' lives); Alex M.
Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice : Why Integrationism Fails African-
Americans Again, 81 Cal. L. Rev. 1401 passim (1993) (reevaluating the goal of integration in the
context of Southern Black colleges); Mari J. Matsuda, Looking to the Bottom: Critical Legal
Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 373-88 (1987) (challenging doctrinal
objections to reparations); Williams, supra note 49, at 432-33 (asserting the need to
reconceptualize concepts of property and rights so that rights protect genuine individual privacy).

[FN53]. See Edward L. Rubin, On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80
Cal. L. Rev. 889, 953-57 (1992).

[FN54]. This theme pervades critical race theory's treatment of rights. For particularly explicit
statements, see Williams, cited above in note 50, at 151-52, and Richard Delgado, Roderigo's
Ninth Chronicle: Race, Legal Instrumentalism, and the Rule of Law, 143 U. Pa. L. Rev. 379,
387-88 (1994).

[FN55]. See Catharine A. MacKinnon, Toward a Feminist Theory of the State 237-38 (1989)
(‘In the liberal state, the rule of law ... both institutionalizes the power of men over women and
institutionalizes power in its male form.‘); Lucinda M. Finley, Transcending Equality Theory: A
Way Out of the Maternity and the Workplace Debate, 86 Colum. L. Rev. 1118, 1118-22 (1986)
(arguing that the traditional distinction between public and private spheres helps to sustain the
subordination of women in the employment arena); Robin West, Jurisprudence and Gender, 55
U. Chi. L. Rev. 1, 4 (1988) (‘The virtual abolition of patriarchy -- a political structure that values
men more than women -- is the political precondition of a truly ungendered jurisprudence.‘);
Joan C. Williams, Deconstructing Gender, 87 Mich. L. Rev. 797, 826 (1989) (‘[B]oth
discrimination against women and women's ‘choices' must be seen as elements of an integrated
system of power relations that systematically disadvantages women.‘).

[FN56]. See MacKinnon, supra note 55, at 136-41, 168-70.

[FN57]. A notable example is the campaign by radical feminists to obtain passage of an anti-
pornography statute. See Paul Brest & Ann Vandenberg, Politics, Feminism, and the
Constitution: The Anti-Pornography Movement in Minneapolis, 39 Stan. L. Rev. 607 passim
(1987). See generally Anne M. Coughlin, Regulating the Self: Autobiographical Performances in
Outsider Scholarship, 81 Va. L. Rev. 1229, 1234-60 (1995) (identifying traditional value systems
embedded in outsider narratives); Dennis Patterson, Postmodernism/Feminism/Law, 77 Cornell
L. Rev. 254, 305-16 (1992) (discussing the reform-oriented modernism of feminist scholarship);
Rubin, supra note 53, at 954-55 (highlighting the contrast between the pragmatic nature of
recommendations and the global quality of theoretical positions in feminist scholarship).

[FN58]. See Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory,
95 Colum. L. Rev. 304 passim (1995); Anne M. Coughlin, Excusing Women, 82 Cal. L. Rev. 1,
45-48 (1994); Mahoney, supra note 49, at 53-63.

[FN59]. See, e.g., William N. Eskridge, Jr., Gaylegal Narratives, 46 Stan. L. Rev. 607 passim
(1994); Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet
the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459,
471 (1990) (‘A new definition of parenthood is necessary to adapt to the complexities of modern
families.‘); Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431, 1461-92
(1992).

[FN60]. Komesar, supra note 46, at 5.

[FN61]. For a discussion of the field's development, see Oliver E. Williamson, Markets and
Hierarchies: Analysis and Antitrust Implications 1-8 (1975).

[FN62]. See, e.g., John R. Commons, Institutional Economics: Its Place in Political Economy
passim (1934); Thorstein Veblen, The Theory of the Leisure Class passim (1912).

[FN63]. See Oliver E. Williamson, The Economic Institutions of Capitalism 85-162 (1985);
Armen A. Alchian, Specificity, Specializations, and Coalitions, 140 J. Institutional & Theoretical
Econ. 34, 34, 38-40 (1984); R.H. Coase, The Nature of the Firm, 4 Economica 386, 390-98
(1937); R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 16-17 (1960).

[FN64]. See Williamson, supra note 63, at 15-42.

[FN65]. See Douglass C. North, Institutions, Institutional Change and Economic Performance
22-23 (1990); Herbert A. Simon, Administrative Behavior at xxiv-xxvii (2d ed. 1961);
Williamson, supra note 63, at 45-46; Williamson, supra note 61, at 21-26.

[FN66]. See North, supra note 65, at 36-45; Williamson, supra note 63, at 131-62, 206-39, 298-
325.

[FN67]. See Williamson, supra note 63, at 131-62; Williamson, supra note 61, at 117-31.

[FN68]. See Howard Margolis, Selfishness, Altruism, and Rationality 1-5 (1982); Douglass C.
North, Structure and Change in Economic History 18, 47, 205 (1981); Robert Sugden, The
Economics of Rights, Co-operation and Welfare at vi-vii (1986); Robert Cooter, Law and
Unified Social Theory, 22 J.L. & Soc'y 50, 61-66 (1995); Mark Granovetter, Economic Action
and Social Structure: The Problem of Embeddedness, 91 Am. J. Soc. 481, 481-83 (1985).

[FN69]. See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 1-11
(1991).

[FN70]. See North, supra note 65, at 54-60; Williamson, supra note 63, at 163-205.

[FN71]. North, supra note 65, at 54.

[FN72]. See Oliver E. Williamson, Chester Barnard and the Incipient Science of Organization, in
Organization Theory: From Chester Barnard to the Present and Beyond 172, 194-200 (Oliver E.
Williamson ed., 1995); Oliver E. Williamson, Transaction Cost Economics and Organization
Theory, in Organization Theory: From Chester Barnard to the Present and Beyond, supra, at 207,
231-38 [[[hereinafter Williamson, Transaction Cost Economics].

[FN73]. See North, supra note 65, at 46-53; Paul R. Milgrom, Douglass C. North & Barry R.
Weingast, The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges,
and the Champagne Fairs, 2 Econ. & Pol. 1, 9-14 (1990).

[FN74]. Williamson, Transaction Cost Economics, supra note 72, at 217. Richard Posner argues
that transaction cost economics is not a genuinely new approach. See Richard A. Posner, The
New Institutional Economics Meets Law and Economics, 149 J. Institutional & Theoretical
Econ. 73, 74-76, 82-84 (1993). For responses, consult Kenneth Scott, Comment, The New
Institutional Economics Meets Law and Economics, 149 J. Institutional & Theoretical Econ. 92
(1993), and Oliver E. Williamson, Transaction Cost Economics Meets Posnerian Law and
Economics, 149 J. Institutional & Theoretical Econ. 99, 99 n.1, 101-05 (1993). Posner
notwithstanding, many economists regard transaction cost economics as an important innovation
and believe that it leads in new directions for legal scholarship.

[FN75]. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 Yale L.J. 743, 767-85
(1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 Mich. L. Rev.
1131, 1137-42 (1994). But see Drucilla Cornell, The Philosophy of the Limit: Systems Theory
and Feminist Legal Reform, in Deconstruction and the Possibility of Justice 68, 69 (Drucilla
Cornell, Michael Rosenfeld & David G. Carlson eds., 1992); Jacques Derrida, Force of Law: The
‘Mystical Foundation of Authority‘, in Deconstruction and the Possibility of Justice, supra, at 3,
6-8.

[FN76]. See John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal
Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke L.J. 84, 103-06
(1995); John Stick, Can Nihilism Be Pragmatic?, 100 Harv. L. Rev. 332, 334 (1986); see also
Daniel C. Chow, Trashing Nihilism, 65 Tul. L. Rev. 221, 227-28 (1990) (offering a general
critique of critical legal studies' use of deconstruction).

[FN77]. See Rubin, supra note 34, at 1838-47.

[FN78]. See Martin Heidegger, Being and Time (1962); Edmund Husserl, The Crisis of
European Sciences and Transcendental Phenomenology (David Carr trans., 1970); Edmund
Husserl, Ideas (1962); Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Auscombe
trans., 1958).

[FN79]. See The Linguistic Turn: Recent Essays in Philosophical Method 1-39, 43-124 (Richard
Rorty ed., 1967).

[FN80]. See Niklas Luhmann, The Differentiation of Society 238-42 (Stephen Holmes & Charles
Larmore trans., 1982) [hereinafter Luhmann, Differentiation]; Niklas Luhmann, Political Theory
in the Welfare State 232-34 (John Bednarz Jr. trans., 1990) [hereinafter Luhmann, Political
Theory]; Claus Offe, Contradictions of the Welfare State 162-78, 256-58 (John Keane ed.,
1984); Gunther Teubner, Law as an Autopoietic System passim (Zenon Bankowski ed. & Anne
Bankowska & Ruth Adler trans., 1993); Gunther Teubner, The Transformation of Law in the
Welfare State, in Dilemmas of Law in the Welfare State 3, 3-9 (Gunther Teubner ed., 1986). An
earlier version of systems theory constitutes one theme in the (largely) American sociology of
organizations. See Ludwig von Bertalanffy, General Systems Theory passim (1968). Luhmann's
adaptation of this approach for a more general social theory is indicative of his institutional
orientation.

[FN81]. See Niklas Luhmann, A Sociological Theory of Law 51-52 (Martin Albrow ed. &
Elizabeth King & Martin Albrow trans., 1985).

[FN82]. See id. at 49-61.

[FN83]. Id. at 52.

[FN84]. See Luhmann, Differentiation, supra note 80, at 334-42.

[FN85]. See id. at 152-54.

[FN86]. See Jean L. Cohen & Andrew Arato, Civil Society and Political Theory 316-24 (1992)
(summarizing Niklas Luhmann, Politische Planung (1971)).

[FN87]. Luhmann, supra note 81, at 187. This process of choice not only incorporates law within
the political system, but also confers significance on certain components or subsystems within
that system. ‘The channelling of the renewal and change of positive law through political means
involves bringing the party-political mechanism into functioning operation, to let it become an
institution, and not to allow it to be a facade devoid of influence .... ‘ Id. at 189 (emphasis
omitted).

[FN88]. See id. at 77-78.

[FN89]. See id. at 75.

[FN90]. Id. at 109 (emphasis omitted).

[FN91]. See id. at 167-69. This position places Luhmann in opposition to Kelsen, the founder of
modern legal positivism. See Kelsen, General Theory, supra note 10, at 58-64. But Luhmann
does recognize the role of force, or violence, in the legal system. See Luhmann, supra note 81, at
83-90.

[FN92]. See Luhmann, Political Theory, supra note 80, at 117-54; Niklas Luhmann, The Unity
of the Legal System, in Autopoietic Law: A New Approach to Law and Society 12, 14-16
(Gunther Teubner ed., 1987).

[FN93]. See Teubner, supra note 80, at 13-24; Gunther Teubner, Evolution of Autopoietic Law,
in Autopoietic Law: A New Appproach to Law and Society, supra note 92, at 217 passim;
Gunther Teubner, How the Law Thinks: Toward a Constructivist Epistemology of Law, 23 Law
& Soc'y Rev. 727 passim (1989).

[FN94]. Teubner, supra note 80, at 41.

[FN95]. Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge at xxiv

(Geoff Bennington & Brian Massumi trans., 1984).

[FN96]. See Jean Baudrillard, In the Shadow of the Silent Majorities 17-19 (Paul Foss, John
Johnston <amp Paul Patton trans., 1983)> Gilles Deleuze & Felix Guattari, Anti-Oedipus 362-65
(1983); Michel Foucault, The Order of Things 373-87 (1970); Lyotard, supra note 95, at 15.

[FN97]. Foucault, supra note 96, at 387.

[FN98]. See Lyotard, supra note 95, at 3-6.

[FN99]. Id. at 15 (footnote omitted); see also Jean-Francois Lyotard, The Inhuman 62-65 (1991)
(arguing that worldwide computerization of knowledge is replacing human memory and
traditional culture with postmodern institutional structure).

[FN100]. See Jean Baudrillard, Fatal Strategies 81-99, 166-79 (Jim Fleming ed. & amp Philip
Beitchman &amp W.G.J. Niesluchowski trans., 1990) (1983).

[FN101]. See Gilles Deleuze & Felix Guattari, A Thousand Plateaus: Capitalism and
Schizophrenia 3-25, 351-423 (1987).

[FN102]. See, e.g., Steven Best & Douglas Kellner, Postmodern Theory: Critical Interrogations
34-75 (1991).

[FN103]. See Michel Foucault, The Archaeology of Knowledge 199-211 (1972); Foucault, supra
note 96, passim.

[FN104]. Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans.,
Vintage Books 1995) (1975).

[FN105]. See id. at 73-75, 114-26.

[FN106]. See id. at 139-41.

[FN107]. See id. at 135-38.

[FN108]. See id. at 209-28, 307-08.

[FN109]. See Nancy Fraser, Unruly Practices: Power, Discourse, and Gender in Contemporary
Social Theory 28-30 (1989).

[FN110]. Foucault's work on sexuality may also be read as advancing this claim. See 1 Michel
Foucault, The History of Sexuality 92-102 (Robert Hurley trans., Vintage Books 1990) (1976).
Foucault's observations about the social construction of sexuality bear a close relationship to
some of the substantive issues in radical feminism and gaylegal studies. The analysis of
institutions in Discipline and Punish is more relevant, however, in that it points more directly
toward a new legal synthesis.

[FN111]. Jurgen Habermas, The Structural Transformation of the Public Sphere (Thomas Burger
with Frederick Lawrence trans., MIT Press 1989) (1962).

[FN112]. See id. at 27-31, 181-89, 222-35.

[FN113]. See 1 Jurgen Habermas, The Theory of Communicative Action: Reason and
Rationalization of Society passim (Thomas McCarthy trans., Beacon Press 1984) (1981).

[FN114]. See id. at 339-44.

[FN115]. See id. at 13 (defining the lifeworld as ‘bounded by the totality of interpretations
presupposed by the members as background ‘knowledge’‘); 2 id. at 119-52 (Thomas McCarthy
trans., Beacon Press 1987).

[FN116]. See 2 id. at 119-52. Habermas argues that law becomes an instrumentality of this
process. He states:
[L]aw serves as a means for organizing media-controlled subsystems that have, in any
case, become autonomous in relation to the normative contexts of action oriented by mutual
understanding. Most areas of economic, commercial, business, and administrative law fit here:
the law is combined with the media of power and money in such a way that it takes on the role of
a steering medium itself.
Id. at 365 (footnote omitted). This use of law as a steering mechanism distorts its
normative function. See id. at 365-67.

[FN117]. Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of
Law and Democracy at xl, 23-25 (William Rehg trans., forthcoming May 1996); see James
Bohman, Complexity, Pluralism and the Constitutional State: On Habermas's Faktizitat und
Geltung, 28 Law & Soc'y Rev. 897, 912-20 (1994); Michael Rosenfeld, Law as Discourse:
Bridging the Gap Between Democracy and Rights, 108 Harv. L. Rev. 1163 (1995) (reviewing
Between Facts and Norms). The institutional approach of Habermas's works, particularly his
most recent, seems a more promising link to critical race theory and radical feminist theory than
does his more abstract, epistemologically oriented discussion of discourse ethics. For feminist
critiques of the latter, see Feminists Read Habermas passim (Johanna Meehan ed., 1995).

[FN118]. See Habermas, supra note 117, at 287-328. He thereby challenges system theory
analysis, which regards such separate spheres (the state and civil society, for example) as quasi-
autonomous. See Luhmann, Differentiation, supra note 80, at 76-82; Teubner, supra note 80, at
100-22.

[FN119]. See Habermas, supra note 117, at 341-59. Habermas relies on the American civil
republicanism school. See id. For an overview of this school of thought, see Frank Michelman,
Law's Republic, 97 Yale L.J. 1493, 1494-1507 (1988), and Cass R. Sunstein, Interest Groups in
American Public Law, 38 Stan. L. Rev. 29, 31-48 (1985). This movement represents, of course,
another major theme in legal scholarship, and it too would need to be a part of any general
synthesis of discourse. Although there is a certain abstract character to civil republicanism,
scholarship in this field, such as the works cited above, reveals the same emphasis on
institutional settings.

[FN120]. See Thomas McCarthy, Practical Discourse: On the Relation of Morality to Politics, in
Habermas and the Public Sphere 51, 52-57 (Craig Calhoun ed., 1992).

[FN121]. See Jurgen Habermas, Struggles for Recognition in Constitutional States, 1 Eur. J. Phil.
128 passim (1993).

[FN122]. See, e.g., Cohen & Arato, supra note 86, at 210-31 (1992); Offe, supra note 80, at 37-
46; Alain Touraine, The Voice and the Eye : An Analysis of Social Movements 102-09 (Alan
Duff trans., Cambridge University Press 1981) (1978).

[FN123]. See de Tocqueville, supra note 35, at 513-17.

[FN124]. See Cohen & Arato, supra note 86, at 492-604.

[FN125]. See Roberto M. Unger, False Necessity: Anti-Necessitarian Social Theory in the
Service of Radical Democracy 395-441 (1987).

[FN126]. See id. at 172-76.

[FN127]. Other trends in contemporary scholarship might provide additional support for this
methodology. A notable example is the ‘new institutionalism‘ movement in American sociology.
See, e.g., James G. March & Johan P. Olsen, Rediscovering Institutions 1-2, 16-19 (1989); Paul
J. DiMaggio & Walter W. Powell, Introduction to The New Institutionalism in Organizational
Analysis 1, 11-15 (Walter W. Powell & Paul J. DiMaggio eds., 1991). For an indication of the
affinity of this trend to critical race theory, see Paul J. DiMaggio &amp Francie Ostrower, Race,
Ethnicity, and Participation in the Arts passim (1992).
[FN128]. This trend is particularly notable in recent efforts to escape the inherited traditions of
administrative law and develop a more comprehensive, multifaceted analysis of regulatory
issues. See Christopher F. Edley, Jr., Administrative Law: Rethinking Judicial Control of
Bureaucracy at ix-xii (1990); Thomas O. McGarity, Reinventing Rationality: The Role of
Regulatory Analysis in the Federal Bureaucracy at xv-xvii (1991) (analyzing federal agency
decisionmaking models); Susan Rose-Ackerman, Rethinking the Progressive Agenda: The
Reform of the American Regulatory State 13 (1992) (arguing for an administrative reform
agenda created through ‘synthesis‘ of several disciplines); Cass R. Sunstein, After the Rights
Revolution: Reconceiving the Regulatory State 8-10 (1990) (considering administrative
regulation with reference to history, preferred principles of statutory construction, and
constitutional principles).

[FN129]. See Douwe W. Fokkema, Literary History, Modernism and Postmodernism 41, 45
(1984); Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 4 (1983)
(noting the recent rejection of ‘general‘ theories of society); Lyotard, supra note 95, at xxiii-xxiv
(defining ‘postmodern‘ thought as the rejection of ‘metanarratives‘).

[FN130]. In fact, the theories on which the suggested synthesis would be based are quite general;
transaction cost economics aspires to identify universal principles of economic behavior, while
Habermas, with his multi-box grids and rapid surveys of world history, exemplifies broad
modernist theorizing.

[FN131]. See Teubner, supra note 80, at 100-22; Niklas Luhmann, The Self-Reproduction of
Law and Its Limits, in Dilemmas of Law in the Welfare State, supra note 80, at 111, 112;
Gunther Teubner, Introduction to Autopoietic Law, in Autopoietic Law: A New Approach to
Law and Society, supra note 92, at 1, 1-11.

[FN132]. See Williamson, Transaction Cost Economics, supra note 72, at 215-23.

[FN133]. See Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the
Writing and Reading of Statutes, 66 N.Y.U. L. Rev. 1, 45-63 (1991).

[FN134]. See, e.g., George P. Fletcher, Two Modes of Legal Thought, 90 Yale L.J. 970, 995-
1003 (1981); Pierre J. Schlag, Normativity and the Politics of Form, 139 U. Pa. L. Rev. 801,
808-52 (1991); Mark Tushnet, Legal Scholarship: Its Causes and Cure, 90 Yale L.J. 1205, 1208-
15 (1981). These accounts tend to be critical of the prescriptive nature of legal scholarship, but
they generally focus on unexamined, or reflexive, prescription. As these scholars observe, this
phenomenon is widespread and, in fact, inherent in law as a separate scholarly discipline. See
Rubin, supra note 34, at 1847-59.

[FN135]. See Edward L. Rubin, The Concept of Law and the New Public Law Scholarship, 89
Mich. L. Rev. 792, 792-93 (1991).
[FN136]. See Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 s 106, 12
U.S.C. s 1831r-1(d) (1994). The statute provides that, when an interstate bank proposes to close a
branch in an area of low or moderate income, area residents may trigger a meeting between
community leaders and the regulatory agency to ‘explore the feasibility of obtaining adequate
alternative facilities and services.‘ Id.

[FN137]. This proposal has been enacted in various forms by several states, but not by the
federal government. See, e.g., Ill. Comp. Stat. ch. 205, s 605/4 (1993); Mass. Ann. Laws ch.
167D, s 2 (Law. Co-op. 1987); Minn. Stat. Ann. ss 46.044, 48.512 (West 1988 & Supp. 1996).
The basic concept is that banks must offer below-market rates on checking accounts to low-
income or elderly individuals. See John P. Caskey, Fringe Banking 128-33 (1994) (proposing a
‘moderate [federal] lifeline banking law‘ to benefit low-income households); Glenn B. Canner &
Ellen Maland, Basic Banking, 73 Fed. Reserve Bull. 255, 256-69 (1987) (evaluating proposals
for basic banking that would guarantee a ‘minimum level of financial services that should be
available to all citizens, regardless of income‘).

[FN138]. See Community Reinvestment Act of 1977, 12 U.S.C. ss 2901-2907 (1994). The Act
requires that federal regulators evaluate banks to determine whether they are meeting the credit
needs of the communities in which they operate. The evaluations are published and are
considered when the agency decides whether to approve mergers, branch acquisitions, branch
openings, and branch relocations. See id. For a comprehensive survey, see Roland E. Brandel &
David E. Teitelbaum, The Community Reinvestment Act: Policies and Compliance (1991).

[FN139]. See, e.g., A. Brooke Overby, The Community Reinvestment Act Reconsidered, 143 U.
Pa. L. Rev. 1431, 1446-53, 1497-1505 (1995); Anthony D. Taibi, Banking, Finance, and
Community Economic Empowerment: Structural Economic Theory, Procedural Civil Rights,
and Substantive Racial Justice, 107 Harv. L. Rev. 1463, 1469-70 (1994).

[FN140]. See, e.g., Jonathan R. Macey & Geoffrey P. Miller, The Community Reinvestment
Act: An Economic Analysis, 79 Va. L. Rev. 291, 295-97 (1993).

[FN141]. See, e.g., Michael Klausner, Market Failure and Community Investment: A Market-
Oriented Alternative to the Community Reinvestment Act, 143 U. Pa. L. Rev. 1561, 1564-65
(1995); Edward L. Rubin, The Lifeline Banking Controversy: Putting Deregulation to Work for
the Low-Income Consumer, 67 Ind. L.J. 213, 224-29 (1992); Peter P. Swire, Safe Harbors and a
Proposal to Improve the Community Reinvestment Act, 79 Va. L. Rev. 349, 351-57 (1993).

[FN142]. See Edwin Mansfield, Microeconomics: Theory and Applications 66-67 (3d ed. 1979);
Richard A. Musgrave & Peggy B. Musgrave, Public Finance in Theory and Practice 102-03 (3d
ed. 1980); Joseph E. Stiglitz, Economics of the Public Sector 206-08, 291-97 (1986).

[FN143]. See Fuller, supra note 7, at 95-151.

[FN144]. See Bickel, supra note 6, at 23-28; Black, supra note 6, at 156-82.

[FN145]. See Imre Lakatos, The Methodology of Scientific Research Programmes 47-52 (John
Worrall & Gregory Currie eds., 1978).

[FN146]. See Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222, 227-28 (1984).

[FN147]. See Owen M. Fiss, The Death of the Law?, 72 Cornell L. Rev. 1, 13-16 (1986). For a
discussion of these exclusionary efforts, see Minda, cited above in note 34, at 208-23, and Gary
Minda, The Jurisprudential Movements of the 1980s, 50 Ohio St. L.J. 599, 650-65 (1989).

[FN148]. See supra note 31 and accompanying text.

[FN149]. In Foucault's view, knowledge is essentially an epiphenomenon of power. See Michel

Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-1977, at 78-108
(Colin Gordon ed. & Colin Gordon et al. trans., 1980).

[FN150]. See Hans-Georg Gadamer, Truth and Method 235-74 (1975); 1 Habermas, supra note
113, at 305-37.

[FN151]. See Audain, supra note 31, at 1093-1104; Martha Minow, Law Turning Outward, 73
Telos 79, 95-99 (1987).

[FN152]. It is my observation that law school faculties are more often split on the issue of
theoretical versus practical approaches to law -- a debate colloquially known as the celestials
versus the terrestrials -- than they are on issues of scholarly methodology.

[FN153]. See Rubin, supra note 34, at 1847-53.

[FN154]. See Gadamer, supra note 150, at 5-10; 1 Habermas, supra note 113, at 1-7.

[FN155]. See 1 Max Weber, Economy and Society 24-26 (Guenther Roth & Claus Wittich eds.
& Ephraim Fischoff et al. trans., 1968).

[FN156]. See 1 Habermas, supra note 113, at 273-337. Social theorists as diverse as Lyotard and
Luhmann are in agreement with this position. See Luhmann, supra note 81, at 31-40; Lyotard,
supra note 95, at 18-23.

[FN157]. See 1 Habermas, supra note 113, at 84-101.

[FN158]. See 1 Weber, supra note 155, at 4-12.

[FN159]. See, e.g., 2 Habermas, supra note 113, passim; Luhmann, supra note 81, passim.
[FN160]. See Wechsler, supra note 6, at 31-34.

[FN161]. See, e.g., Gary Peller, Neutral Principles in the 1950s, 21 U. Mich. J.L. Ref. 561, 564-
66 (1988).

109 Harv. L. Rev. 1393

END OF DOCUMENT