| In this dissertation, I analyze (make sense of) the differences between the theories of judicial decision making offered by Judge Richard Posner's Economic Analysis of Law, Institutional Law and Economics, and Critical Legal Theory. Using discourse analysis, I characterize each legal-economic theory in this study as a discursive "event" with three dimensions: text, discursive practice, and social practice, corresponding to the different yet interrelated social processes--storytelling, social construction, and social action--which co-exist and interact in legal-economic discourse.; At the text dimension of each discursive event, I find that law and economics of the 1970's-1985 is not a single story but a collection of competing stories with different themes and features. Furthermore, an excursion into legal-economic history reveals that contemporary law and economics draws upon the past, specifically American Legal Realism, in different ways. At the discursive practice dimension, I have compared the production of four concepts: the economy, the law, the legal-economic interface, and the judge. I find that the same concepts have different meanings across discursive events and that different concepts emerge within and between discursive events. Given this conceptual battle over the representation of judicial decision making, law and economics is seen as a process of social construction and a form of social struggle. Finally, at the social practice dimension, I have identified what I call critical moments in theory production as a means of revealing ideology--social commitments--in discourse. In this way, law and economics is seen as a form of social action.; This analysis of law and economics reveals the discursive nature of legal-economic knowledge. I conclude that law and economics has no fixed and stable meaning. And there is no essential nature to judicial decision making, be it efficiency, power, or politics. |
