Law & Economics, CST and Yale

Sometimes coincidence is scary. Just before reading Eduardo's post on his CST course at Yale, I spent an hour with an applicant to Villanova Law who recently had finished an M.Div. at Yale Divinity School. While there, she took a course in the law school entitled "Theology and Law," which she said was about 50-50 law and divinity students. She reported that most of the law students took a strongly negative view on the relevance of religion to law and discourse about law. It's good to see that Eduardo is finding something a bit different. But I did want to weigh in on the CST/law & economics issue that Eduardo and Rick have noted. I think that Eduardo has put his finger on the central difficulty in talking about CST in the American legal academy: the contrast between CST's premises and those of law & economics. Given the profound influence of L&E in the academy, proponents of CST need to grapple over the tension between the two world views -- and they are really quite different world views that do conflict in important ways.  I don't think that the conflict is over the concept of "efficiency" per se, and as Rick says, there is nothing Catholic mandating inefficiency (though Catholic colleges and universities may be empirical evidence to the contrary.) But that is not quite the point. The real conflict is between the CST concept of the common good and the neoclassical, law & econ conception of social welfare, understood as the aggregation of preferences or utilities. While the tool kit of law econ remains very useful, its essentially utilitarian prescriptive assumptions reject much of the Western tradition's basic assumptions on the nature of the good -- whether expressed by Aristotle or Aquinas. Instead of blathering on about this, I will point you to the sidebar, where I have posted a draft of my "Utility, the Good and Civic Happiness: A Catholic Critique of Law and Economics," which was published in the first issue of St. John's new Journal of Catholic Legal Studies. The final version (as distinct from this draft) can also be found under my name on SSRN.

--Mark