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Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory

Morton Horwitz once posed the question, “Law and Economics: Science or Politics?” highlighting what has been a contentious issue for legal historians and the general legal academic community. A common historical accounting for the emergence of the law and neoclassical economics movement is that it provided theoretical ammunition for right-of-center politics following the collapse of 1960s progressive politics. Simultaneously, it has been viewed as a continuation of the legal realist moment and a response to the need for a scientific foundation for private law. In short, the consensus seems to be that law and neoclassical economics is about either science or politics. Little thought has been given, however, to its political and scientific formation and, in particular, to how the two in fact intersect. This article attempts to remedy the situation.