Cornel West, Meet Richard Posner: Towards a Critical-Neoclassical Synthesis Francisco E.Guerra-Pujol* Do not ask who I am and do not ask me to remain the same .. Pet us leave itto our bureaucrats and our police to see that our papers are in order. I. INTRODUCTION Imagine Harvard professor Cornel West stuck in the same elevator with Judge Richard A. Posner. One is an African-American, a progressive champion of racial and economic equality, and a critical scholar of race, politics, and culture, while the other is of Jewish descent, a libertarian champion of free markets, and the intellectual godfather of 'law and economics'. Both scholars have published a prolific corpus of writings 2 and are at the forefront of two great intellectual movements: critical theory and law and economics. So what on Earth would these two leading public intellectuals say to each other? At the risk of sounding a bit irreverent, permit me to quote my favorite cartoon character: iay carumba!3 I mention Judge Posner and Professor West in particular to personify the deep intellectual divide between neoclassical economics (of which 'law and economics' is an offshoot) and critical theory.4 Indeed, this gulf is readily apparent inmany of the papers published in this LatCrit X Symposium issue.5 Furthermore, this distrust is mutual. Just as most critical scholars share a profound antipathy towards orthodox economics, many neoclassical economists and mainstream lawyer- * Associate Professor, Catholic University of Puerto Rico School of Law. I am grateful to the many critical scholars who helped me develop the ideas in this paper. I am especially indebted to the organizers of the LatCrit X conference held in San Juan, Puerto Rico in October 2005, who invited me to present a rough sketch of this paper. 1. MICHEL FOUCALT, THE ARCHAEOLOGY OF KNOWLEDGE 17 (Alan Sheridan trans., Vintage Books 1972) (1969).. 2. 'Prolific' is probably an understatement. At last count, Professor West has written or co- authored over seventeen books, many of them best-sellers, while Judge Posner has fathered a plethora of books, judicial opinions, and scholarly papers. A complete bibliography of Posner's academic publications appears at www.law.uchicago.edu/faculty/posner-r/publications.html. 3. With all due respect to Matt Groenig, the creator of 'The Simpsons', the correct spelling of carumba in Spanish is caramba, an interjection meaning 'good heavens!' or 'good griefl' See, RAQUEL L6PEZ VARELA, DICCIONARIO ESPAOL-INGLtS 78 (Editorial Everest) (2002). 4. Critical theory includes feminist scholarship, critical race theory, and 'LatCrit' theory, amongst other things. In theory, the gulf between critical theory and economics should be less narrow in the legal academy. After all, their counterparts in legal theory-critical legal studies and 'law and economics'-both evolved from a common ancestor, American Legal Realism. Angela Harris, Lecture at LatCrit X Conference (Oct. 9, 2005). Nevertheless, like Darwin's finches, it appears that both legal movements have evolved into radically different species. 5. See, for example, the papers by Carmen Gonzdlez, and Steven Ramirez in this issue. BERKELEY LA RAZ4 LAWJOURNAL [Vol. 17:39 economists in turn disdain progressive critical theory and its heterodox variants in economics. There is thus no love lost between critical theory and orthodox economics. Perhaps these mutual misgivings are warranted. After all, unbridled markets do tend to produce gross inequalities in the distribution of wealth and power 6 while unbridled governmental intervention tends to exacerbate discrimination, corruption, and political oppression (just as central planning has yet to produce a single, workable 'workers' paradise'). 7 While this mutual distrust may be understandable it is certainly not productive. At the risk of sounding like an intellectual masochist, I sincerely wish the Cornel Wests and Richard Posners of the world would start talking to each other more often.8 In lieu of such a fictional conversation, however, I have decided to put in my own two cents' worth by writing this conceptual paper. Scholars in both traditions appear to have disregarded Foucault's dictum, quoted at the top of my paper, clinging on to one identity (as critical theorists) or the other (as orthodox economists or lawyer-economists, as the case may be). In this paper, however, I shall disregard these labels and attempt to establish a tentative synthesis between neoclassical economics and critical theory. Though such a synthesis might appear quixotic, impracticable, and counter-intuitive, the two intellectual movements are not necessarily as far apart as commonly believed, for my thesis is that the basic ideas of orthodox economics are, in principle, consistent with the progressive anti-subordination and community-building goals of critical theory. Before I proceed, it is imperative that I distinguish my approach from the intellectual movement known as 'socio-economics', which in turn is part of a broader movement referred to as 'heterodox economics'. 9. My proposal is not the same thing as 'socio-economics' or heterodox theory. In fact, it is radically different. Socio-economics, in essence, challenges the basic premises and assumptions of neoclassical economics and thus attempts to replace neoclassical theory with an entirely new paradigm. '0 My project, on the contrary, takes the basic neoclassical concepts at face value and attempts to incorporate them wholesale into critical analysis. My position is that critical theory has nothing to fear from economics and a lot to gain, for I aim to persuade the reader that critical theory can beat orthodox economics at its own game. 6. See, e.g., CORNEL WEST, RACE MATTERS (Vintage Books 2001) (1993). 7. By the same token, it has also been said that 'under capitalism, people exploit people, whereas under socialism, it's the other way around!' DAVID P. BARASH, THE SURVIVAL GAME 243 (2003). 8. Perhaps the organizers of this conference (LatCrit X) may want to consider extending an invitation to both West and Posner to speak at a future conference. 9. See, e.g., HARRY LANDRETH & DAVID C. COLANDER, HISTORY OF ECONOMIC THOUGHT ch. 17 (Houghton Mifflin 2002) (1994). 10. See, e.g., Charles R.P. Pouncy, Economic Justice and Economic Theory: Limiting the Reach of NeoclassicalIdeology, 14 U. FLA. J.L. & PUB. POL'Y 11, 28 (2002). Many of the papers in this issue take this approach, rejecting neoclassical theory in favor of alternate approaches. 2006] CORNEL WEST, MEET RICHARD POSNER II. THE DIMENSIONS OF NEOCLASSICAL ECONOMICS The first step in my analysis is to identify the various dimensions of neo- classical economics. Historians of economic thought generally consider the great British economist Alfred Marshall (1842-1924) the father of neoclassical economics."1 His brilliant opus, Principles of Economics (1890), illustrates the central tenets of neoclassical theory. Among other things, Marshall developed the ceteris paribus technique of economic analysis, formulated the general law of demand, discovered the concept of consumers' surplus, refined marginal analysis, and devised a formula for measuring the price elasticity of demand. All these things are considered mainstays of neoclassical theory, and yet today neoclassical economics is often reduced to rational choice theory. 12 In reality, as the breadth of Alfred Marshall's genius attests to, neoclassical economics is about more than just rational choice. Furthermore, at a fairly high level of abstraction, economic analysis entails a wide variety of assumptions, methodologies, and premises. Consider the following schema set forth in Table 1 below: Table 1 Methodology Theoretical assumptions Policy Positivism Rational choice Distributional issues Unit of analysis Efficiency criterion Markets and property rights Empiricism Wealth maximization Other politico-legal goals I have purposefully grouped the various aspects of economic analysis under three broad dimensions: methodological issues, theoretical assumptions, and policy goals. Of course, any classification system will be somewhat arbitrary and no listing of themes will be entirely complete. Professor Ian Macneil of Northwestern University, for example, identifies a number of additional themes in economics in his insightful essay describing 'the many worlds of law and economics'. 13 Nevertheless, my classification system by and large contains the major dimensions in economics and should thus serve as an adequate starting point for my analysis. In summary, neoclassical economics typically claims great formal predictive power, seeks to promote efficiency and wealth maximization, tends to ignore distributional effects, favors market solutions, and has a strong individualist bias. One commentator has used the term 'Posnerian economics' in describing this approach. 14 But Posnerian economics is not the only neoclassical game in town. 11. See, e.g., LANDRETH & COLANDER, supranote 9, at ch. 10. 12. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 3 (Aspen Pub., Inc. 2003) (1973); GARY S. BECKER, THE ECONOMIC APPROACH TO HUMAN BEHAVIOR 5 (1976). 13. Ian R. Macneil, Other Sociological Approaches, in 1 ENCYCLOPEDIA OF LAW AND ECONOMICS 694, 696-97 (Boudewijn Bouckaert and Gerrit De Geest eds., 2000). 14. Id. at694. BERKELEY LA RAZA LA WJOURNAL [Vol. 17:39 Many other scholars and lawyer-economists working within the neoclassical tradition are often willing to relax these hardcore Posnerian assumptions, favoring, for example, 'bounded rationality' over