L&E: history, evolution, and critical responses

The L&E movement can be subdivided into various “schools” surrounding three key universities. The Chicago and Virginia Schools; are associated with “price theory” and “public choice theory,” respectively, whereas the New Haven School – centered at Yale Law – has been more amenable to considerations of distribution, inequality, moral relativism, and non-market forms of allocation. Nevertheless, the Chicago School, many would recognize, has been the most influential in academic law. Despite that fact, this essay advocates a blending of certain theory from the New Haven School and contemporary economic anthropology.

In many ways, a standard-bearer for the New Haven School, Calabresi defies some of the stereotypes L&S writers hold about L&E – most notably, the view that lawyer-economists ignore inequality. He is not the only one who complicates our narratives about what L&E stands for, but Calabresi provides a valuable starting point as part of the larger project – in which I have engaged for four years – to examine more closely the ethical and social tacit assumptions held by this field. While the institutional economists of the 1940s such as Thorstein Veblen showed deep concern for society and culture (Mercuro and Medema 1997, 103), and while other early lawyer-economists such as Ronald Coase claimed institutional economics to be their bedrock (Coase Reference Coase1998), choosing Calabresi as the starting point for this discussion reflects the latter’s enormous contemporary relevance to the study of law, and proximity to political ideologies held by many sociolegal scholars today.Footnote ⁵

In The Future of Law and Economics, a book reflecting on nearly sixty years of personal and disciplinary intellectual development, Calabresi reminds us that law is about incentivizing and deterring values – not just behaviors – and says that lawyer-economists have spoken and written for years as though this function were negligible. “I believe,” he says, “it is demonstrable that economists, in their work, take positions with respect to the relative merits of different tastes, value, and resulting costs, and do so all the time” (Reference Calabresi2016: 132 [my emphasis]). He says, in short, that there are unstated assumptions in how economists choose for some goods to be distributed and priced according to markets, and for other goods – referred to as “merit goods,” a term explained at greater length below – to remain outside of market exchange and pricing. His purpose is not to question the motivations or validity of lawyer-economists; but he believes that L&E theory has suffered from its failure to account for the meta-values that inform such assumptions. Referring back to their earlier book, Calabresi writes that he and Phillip Bobbit issued an early invitation to the interpretive social sciences – namely anthropology – to help develop systematic thinking about how values are quietly assessed and applied (Reference Calabresi2016: 6). And yet, as he also says, that invitation was largely ignored.

One plausible reason for this neglect may have been the institutional displacement of qualitative social sciences during the interdisciplinary development of U.S. law schools in the late twentieth century. By the 2000s, quantitative social sciences, and economics in particular, enjoyed institutional ascendancy as “useful” disciplines to partner with legal scholarship. The number of economics PhDs on faculty at the top 34 law schools as of 2012 was 120 (McCrary et al. Reference McCrary, Milligan and Phillips2016: 556). By comparison, the next closest was political science at 89, whereas sociology sat at 16, and anthropology at 6 (Reference McCrary, Milligan and Phillips2016: 556). Within law, the period was one of relative neo-formalism (Johnston Reference Johnston1990; see also Levitsky et al. Reference Levitsky, Best and Garrick2018), renewing a theoretical approach to economics – formalism as opposed to substantivism (Polanyi 2001 [Reference Polanyi1944]) – that assumed features of human behavior and then sought to map or predict market outcomes as particular variables like prices or tax rates were tinkered with.

By this time, several key criticisms had emerged from Critical Legal Studies and then L&S. First, presumption – that society (and social protections) is embedded within the market rather than the opposite – characterized much scholarship in L&E and caused consternation among sociolegal scholars (see Edelman Reference Edelman2004). It assumed that if human beings are “social” it is because they are engaged in an infinite number and variety of market transactions with one another, reducing Homo economicus to a transactional being rather than a creature who engages in production and consumption as means to other meaningful ends. Social theorists have been rightly critical of this reduction. Wendy Brown famously wrote that it poses an existential threat to democracy itself by substituting market participation for political participation (Reference Brown2015). Fred Block and Margaret Somers have complained that this reduction obviates the need for sociological or anthropological knowledge about humans and their world (Reference Block and Somers2014: 225).

Second, sociolegal scholars had also long pointed to myriad faults with the rational choice theory classical Homo economicus was based on (Edelman Reference Edelman2004; McAdams Reference McAdams2004). As many said, people are not always “rational.” But the advent and rise of behavioral economics (Jolls et al. Reference Jolls, Sunstein and Thaler1998) somewhat weakened the rhetorical power of this key challenge. Whereas behavioralism was initially marginal among mainstream lawyer-economists, by the early 2000s, it was welcomed wholeheartedly among hardcore L&E scholars. The behavioralist approach was adopted by Cass Sunstein and others in academic writings, the Nobel Prize in Economics was awarded to the psychologist Daniel Kahneman in 2002, and Sunstein was invited to join the Obama administration in 2009 where he would implement ideas proposed in Nudge (Thaler and Sunstein Reference Thaler and Sunstein2008) – a coauthored book largely about failures in rational choice and their policy implications. Sunstein’s collaborator Richard Thaler then won the 2017 economics Nobel, further legitimizing the behavioralist approach as an advancement on conventional economics.

But, as Tanina Rostain wrote, behavioral economics was not the teleological refinement for conventional L&E many assumed it was (Reference Rostain2000). Stemming largely from psychology, behavioral economics foregrounded “bounded rationality” through empirical and experimental research. It answered decades-old criticisms from sociolegal scholars by attending to psychological contingency. And yet, as Rostain says, it was wrongly assimilated as a “new economics” with all the gravitas afforded that discipline and discourse because it utilized much of the same generalizing language (Reference Rostain2000) sometimes in excess of empirical findings.

Behavioral economists helped to complicate the assumptions that had gone into early formalism, and they added nominal diversity to the ranks of law school scholarship and faculty recruitment. Their presence strengthened L&E against challenges from interpretive social scientists that, in practice, human beings rarely behaved in the predictable and atomistic ways that had been taken for granted when using economic reasoning to propose new legal rules and outcomes (Rostain Reference Rostain2000). With the behavioralists influencing debates, the use-value of interpretive social science – especially anthropology with its seemingly slow, long-term fieldwork methodology – seemed especially limited. Worse yet, as Jeffrey Kahn writes, anthropology remained seen among many legal academics as the purveyor of evidence on the “primitive,” an argument echoing that of Michel-Rolph Trouillot’s influential (Reference Trouillot2003) essay on anthropology and the so-called “Savage Slot” (Kahn Reference Kahn2022: 793).

But even after behavioralism, one remaining limitation in L&E was its elision of the social complexity that underpins most legal rule formation, practice, and institutionalization. That limitation was most pointedly raised by Sally Engle Merry in her work on quantification in the human rights sector (Reference Merry2016).Footnote ⁶ Already, as taught and learned in the Western legal profession, culture, and ethics are omitted as not quite fact or law, and therefore not relevant to legal analysis (Mertz Reference Mertz2007). This despite the certain grounding of law in relationships and symbolism (Mezey Reference Mezey2001). Coupling that tendency with the approach of mainstream economics, the L&E movement appeared to shift these considerations even further from the center of analysis and discussion. L&S scholars tended to view L&E in general as reductive and threatening to a socially grounded perspective on the meaning of law. Possibly for these reason as well, there has been no direct impulse to “answer” the call Calabresi and Bobbit issued in Reference Calabresi and Bobbit1978, nor the renewed call Calabresi issued in Reference Calabresi2016. Nevertheless, there have been a few efforts to account for economic behavior and values in the social sciences and humanities that resemble indirect responses. These scholarly positions can be sorted into ones about neoliberalism, capitalist legal architecture, and law and political economy.

The critical study of neoliberalism in the social sciences dates to the 1970s with Michel Foucault’s famous (Foucault 2008 [Reference Foucault and Senellart1979]) College de France lectures on the topic seeking out emancipatory potential in the opportunities created by Chicago School economics. As sociologist Daniel Zamora has said, “His analysis is remarkable in that it represents one of the first attempts to closely study neoliberalism as a thought collective – the things that united it as well as the great differences that coexisted within it” (Zamora Reference Zamora and Ackerman2019). The topic was not widely reexamined until the 1990s (2019), and in the early 2000s, monograph-length intellectual histories from David Harvey (Reference Harvey2007) and Aihwa Ong (Reference Ong2006) traced the line between Milton Friedman, the Washington Consensus, Reaganism/Thatcherism, and the structural adjustment programs of late-twentieth-century globalization. Running throughout that lineage was a progressively more intense disdain for social welfare programs made possible by a high-level rebranding of government social protectionism as “anti-freedom” (Harvey Reference Harvey2007). That rebranding framed “society” – taken for granted as the basis for widespread political cohesion since the New Deal – as a problem for individual liberty.

In the wake of these larger historical observations, anthropologists and sociologists carried out field-based studies to examine the lived realities of social life in an era when society came to be seen as a “cost” rather than “benefit” in itself to public management. In The Paradox of Relevance (Reference Greenhouse2011), Carol Greenhouse finely summarized work in anthropology during the 1980s that captured the effects of a dismantled social welfare state. Included there is Steven Gregory’s Black Corona (1998), about activism in a black community in deindustrialized New York City, as well as Aihwa Ong’s Flexible Citizenship (Reference Ong1999) about transnational elite migrants in San Francisco. Both works illustrate problems of citizenship arising between public and private action at a time when the state seemed to straddle both domains. Elsewhere, the philosopher Michael Sandel (Reference Sandel2012) decried contemporary experience as subject to the “marketization of everything” – a conception that has come to capture in simplified form the general effect of “neoliberalism.” Scheppele (Reference Scheppele and Greenhouse2010) traced the roots of neoliberalism to the end of the Cold War ideological “competition” between the United States and Soviet Union, and Urciouli (Reference Urciouli and Greenhouse2010) observed the effects of this shift in education, where students are now taught to approach learning as preparation for the workplace more than an exercise in critical thought or intellectual dexterity. The latter is consonant with the writings of Giroux (Reference Giroux2014) and Newfield (Reference Newfield2016) and has its starkest implications for Wendy Brown’s (Reference Brown2015) thesis that preparation for democratic citizenship is now largely a preparation for “market-based” citizenship.

In the ensuing years, some wrote about the role of lawyers in the architecture of global capitalism. Riles (Reference Riles2011) argued that lawyers were uniquely responsible for establishing and collateralizing the transnational financial system that enables instantaneous, global transactions. Pistor (Reference Pistor2019) showed cogently the way that legal experts were central in encoding tangible goods and services like land and labor with the labels necessary to bring them as tradable commodities into the global market. If there was a “marketization of everything,” in other words, one could find lawyers present in the moments where objects are irreversibly converted into marketable material for capital.

Still, more direct confrontations are visible in the Law and Political Economy movement that emerged in the wake of the financial crisis of 2008. Based largely in U.S. law schools, that movement resurrected the work of Polanyi (2001 [Reference Polanyi1944]) as applied by contemporary writers like Fred Block and Margaret Somers (Reference Block and Somers2014) and Nancy Fraser (Reference Fraser2013)and focused on distributive inequality along class and race lines. It has taken direct issue with the separation of politics and economics in the widespread acceptance of L&E. Its events have included a symposium of Soviet legal history, and it has proposed a suite of training workshops and teaching materials to bring the critical Left economics perspective into mainstream legal academic work (LPE 2022). Leaders of the movement such as Kapczynski et al. write that, “we find ourselves in a moment of political crisis and accompanying intellectual upheaval: an old order of political economy and its legitimating concepts are crumbling, but a new order has yet to emerge. The outlines of the battle for a new order have come into focus” (Reference Kapczynski, Purdy, Grewal and Sabeel Rahman2020: 1833).

Whereas this new LPE movement in North America is largely a law school phenomenon, it echoes the longstanding work of political economists in other disciplines. In the United States, “political economy” has been largely associated with either Marx and critiques of Capitalism or with Smith and Mill and the later Libertarian movement. Because U.S. professional law had embraced neither of these traditions at its core – and indeed has largely tried to serve as regulatory safeguard for capitalist modes of exchange – political economy remained somewhat neglected among U.S. law schools until the financial crisis, market crash, and Occupy movements made it impossible to ignore. Outside U.S. law schools, the topic has of course been prominent in political science. There, macro-level policy, development, and institutionalism have been key topics (e.g., Hall Reference Hall1989; Lindblom Reference Lindblom1977; Soskice Reference Soskice1994). In anthropology, several (e.g., Graeber Reference Graeber2011; Harris Reference Harris1979; Steward Reference Steward and Steward1972; Wolf Reference Wolf1982) have focused on culture’s mediating role between politics and economics. And in sociology labor and embeddedness – the degree to which economic activity can be treated as a subset of social life – have been key interests for decades (Block and Sommers Reference Block and Somers2014; Burawoy Reference Burawoy2007; Fligstein Reference Fligstein2001). The LPE movement has built on these various approaches, citing several of the above authors, to identify law’s role in supporting structural inequalities caused by extant political economy.

But, despite these rich, substantive responses to the problems neglected or exacerbated by L&E, none has directly contended with the challenge that Calabresi posed: to develop a theory of value that accounts for the moral costs of inequality – and the difficulty ameliorating inequality when “value” is reduced to “price.” Critiques of neoliberalism in L&S have boosted the relevance of sociolegal scholarship in this regard. But the tendency to observe and study virtually everything as an object of marketization may miss the important point about the “costs of costing” Calabresi describes, and it can have a tendency to reify the all-pervasive character of “the market” when lived realities suggest not only considerable resistance but also in some cases all-out refusal. The fusion of early L&E with the “conservative legal movement” (Teles Reference Teles2008; Southworth Reference Southworth2008; Hollis-Brusky Reference Hollis-Brusky2015) by itself suggests that, even on the Right, the application of market logics to legal reasoning may be unwelcome in areas where conservative values would dictate antimarket adherence to a cultural, religious, and moral status quo (see, e.g., Tappe Reference Tappe2021).

Similarly, the “collateral” (Riles Reference Riles2011) and “code of capital” (Pistor Reference Pistor2019) architectural arguments advanced from within the legal academy are about the professional posture of law with respect to global economic transactional life. They tell us that the default or modal role for lawyers in this economically determined structure is that of a technocrat, a functionary, or a middleman; this lesson is important, but it may not advance theory at the intersection of law, society, and economics in the way I am aspiring to in this piece. And finally, the Law and Political Economy group has brought key Left perspectives to far-reaching economic imperatives, especially among legal academics. But its role has so far been a somewhat bibliographic one: attempting to introduce legal scholars to social theorists and economic thinkers that they otherwise might never encounter. Such readings, meanwhile, are commonplace in graduate seminars among the social sciences and humanities, and the great added-value of LPE to this conversation is thus far mostly limited to JD-only law faculty, particularly in the United States. If anything, it conjures the same observation Calabresi offers: that even among “command” economies there can be moral costs to dictating the distribution of merit goods. Thus, recognizing the intellectual history of “command” structures complicates the wisdom of all-encompassing markets, but it introduces the same set of problems related to tastes and merit goods. In other words, each of the above schools of thought have a valuable place in and around the L&S community, but none directly engages the call to understand the costs of costing at the center of Calabresi’s Invite.

And yet, my own efforts to excavate lessons for sociolegal studies by comparing its approaches to L&E – here and in a parallel ethnographic project – are clearly not without precedent. In 2004, LSA President Lauren Edelman wrote that the two fields had much to offer one another given a certain willingness to self-reflect (Edelman Reference Edelman2004). And, as Richard McAdams (Reference McAdams2004) pointed out, it was not as if each field operated ignorant of its own respective deficiencies. It was that LSA scholars remained unfamiliar with the ways contingency already figured into economic theories of law, and of the functional importance economic rationality has even in the face of that contingency. This essay takes up McAdams’ call for attention to these nuances. As I am arguing in this piece, economic anthropology’s accounting for “value” now offers an apt response to questions about tastes and merit goods in L&E raised by Calabresi.

Leaving Chicago: Calabresi, tastes, and merit goods

Calabresi’s attention to issues surrounding moral costs was clearly a departure from Chicago L&E. Chicago’s early use of economics to understand the effects of law on market activity arose during and after the New Deal era (Teles Reference Teles2008). At that time, government intervention in the form of stronger regulation of currency and financial markets, as well as robust social welfare programs, were accepted as necessary remediation following the market crash of 1929, and the speculation that had caused it. But would these legal innovations – creating greater dependency on “command structures”Footnote ⁷ – help or hinder a return to “healthy” market economics?

The urgency of that question was elevated by the Legal Realism movement of the period, which held that jurisprudence could be understood as a function of psychology and sociology, and that legal institutions sit in a feedback loop with social policies and inequalities (see Duxbury Reference Duxbury1995; Fisher, Horwitz, and Reed Reference Fisher, Horwitz, Reed, William W., Morton J. and Thomas A.1993; Mertz Reference Mertz, Mertz, Macaulay and Mitchell2016). To properly modernize law’s presence in twentieth century, urban America, lawyers needed to take better stock of the ramifications of law in society (Duxbury Reference Duxbury1995: 302). That meant on one hand fewer pretenses about law as a formal “science” or, worse, as a product of “nature.” And it meant, on the other hand, a stronger marriage of law with academic disciplines such as psychology, sociology and economics – an impulse that was later reinvoked in efforts by impresarios like Aaron Director and Henry Manne to bring economists into law schools (Teles Reference Teles2008: 102). Although it has been said that L&E in recent decades is a kind of neo-formalist school of legal thought, it is important to view the subfield as it stood at the time of its formation as “other” to law and therefore not supporting the latter’s formal purity (Aber Reference Aber2020).

The earliest presence of economics in law schools started in the area of antitrust law well before legal educators in general were hospitable to the idea of economists on their faculty (Teles Reference Teles2008: 95–97). Richard Posner, who rose to prominence as one of the most influential lawyer-economists, began his professional career in the Federal Trade Commission’s antitrust division (Reference Teles2008). Antitrust law, with its New Deal roots and antimonopoly goals, was the strongest foothold for economics on law faculties by the time institutional entrepreneurs came along in the 1950s to build a movement (see, e.g., Calabresi Reference Calabresi2016: 12).

At Chicago, Aaron Director on the law faculty was instrumental in creating what would come to be called the “Chicago School” (Ebenstein Reference Ebenstein2007; Teles Reference Teles2008). He created a circle of sympathetic colleagues across the law school and economics department, a group of young lawyer-economist fellows, and a new showcase, the Journal of Law and Economics, whose first article was on monopolies in Britain (Jewkes Reference Jewkes1958). Director is credited with attracting the likes of Frederik Hayek, Ronald Coase, and Richard Posner to Chicago, and with securing the publication of Hayek’s seminal The Road to Serfdom (Stigler Reference Stigler2019). Although he published next to nothing himself, the key writers of the Chicago School would attribute much of their rhetoric to Director’s teachings and leadership, while most of the law school converts to the economic approach to law – names like Henry Manne and Robert BorkFootnote ⁸ – credit Director’s seminars as their inspiration. So, on one hand, the Legal Realist movement which shaped “command-oriented” New Deal law and policy also helped create the opening that allowed professional economics to enter legal academia and scholarship. And on the other hand, what came to be termed “Chicago School Economics” was the result of efforts waged first from the law school rather than the economics department (Teles Reference Teles2008).

For these reasons, modern L&E can be considered more closely aligned with neoliberalism today than disciplinary economics. But this outcome was not inevitable. Before Director started at Chicago, the dominant ideology spearheaded there by Henry Simons was a conservative classical liberalism suspicious of all kinds of concentrations of economic power as anticompetitive (Van Horn Reference Van Horn2011). Director, meanwhile, had met with Hayek and George Stigler in Switzerland at the Mount Pelerin Society with funding from the conservative Volker Fund (Stoller Reference Stoller2019). There, the group brainstormed the pro-market, corporatist form of liberalism that Director would later espouse and promote at Chicago. The early days of American L&E, grounded in the anticorporate antitrust policies of the New Deal era, gave way to a new business-friendly liberalism that viewed labor unions as monopolistic and threatening to freedom, but saw concentrations of corporate power as a healthy path to maximizing social utility (Wu Reference Wu2016). Zooming out to the macro level, this set of core ideas would become a template for late-twentieth-century political battles more generally. As some have written, the vision of Aaron Director about the proper role of society in economy (rather than the opposite) has become the predominant, even default way of speaking about socioeconomic life today (Stoller Reference Stoller2019; Wu Reference Wu2016).

Despite its fairly unitary origins, L&E soon experienced an important subdivision into Economic Analysis of Law (EAL) on one hand and L&E on the other (Hylton Reference Hylton2018). When outsiders, including myself, speak of L&E we are usually speaking about both of these hemispheres of the subfield. But, internally, the difference is meaningful: EAL, according to Calabresi (Reference Calabresi2016) is the application of economic theories to the application of law and policy. L&E, he writes, is the use of economic and legal methods to refine theories in both fields (Reference Calabresi2016). The former is analytical and didactic while the latter appears iterative and reflexive. Those practicing the former, such as its main figurehead Richard Posner – considered the most-cited legal scholar in history (Weiss Reference Weiss2021) – saw few limitations in applying economic analysis to all aspects of the professional and academic legal fields including among other things sex (R. Posner Reference Posner1992), love (R. Posner Reference Posner, Louden and Schollmeier1996), literature (R. Posner Reference Posner1988) and anthropology (R. Posner Reference Posner1981). It is an imperious and fast-moving version of the subfield; as such, its writers have generated prodigious amounts of textual output and enjoyed the higher citation counts that follow from that. But some are less sanguine now, despite the early successes, about stretching the economics approach this broadly without empirical grounding (Calabresi Reference Calabresi2016).

Most lawyer-economists are not empirical researchers, but empiricism has grown in popularity among them. Importantly, the earliest and still most-influential lawyer economists had little or no graduate training in economics (Calabresi Reference Calabresi2016). They had generally not conducted original empirical research prior to or during their careers as legal scholars. Economic methods in general are able to make productive use of existing data sets, so this is not altogether limiting. But attention to how data is gathered or what information is left out did not enter mainstream L&E discussions until recent decades. Since, there has been a growth in Empirical Legal Studies (ELS) with prominent legal academics offering empirical research “boot camps” during the summers for non-disciplinary law professors with institutional support for professional development and research (Suchman and Mertz Reference Suchman and Mertz2010, 558). The ELS movement has also tended to emphasize quantitative methods and, in particular economics and political science as disciplinary bedrocks (Suchman and Mertz Reference Suchman and Mertz2010, 558).

Perhaps for these reasons, the ELS movement has, knowingly or not, largely missed Calabresi’s Invite; whereas ELS embrace a positivist brand of social science research, Calabresi’s appeal to anthropology was ostensibly a call for interpretive social research: what is “value,” how does it take form, how might it vary contextually, what does it mean to individuals and groups, and how might “value” be difficult to translate into simple terms such as “price” or “willingness to pay”? Calabresi seemed to understand that the key for answering these queries could be held by the interpretive social sciences. Reflecting that understanding, a starting point for Calabresi was in the domain of “tastes.”

Discussion: situated valuation and distributive inequality

As this section emphasizes, a situated approach to economic value, at least among others, may be useful for sociolegal scholars in explaining why some policy efforts to address distributive inequality may fail. Starting from an assumption of individual rationality, high-level policy reforms to effectuate redistribution – for example, through the tax system (see, e.g., Goldin and Kleiman Reference Goldin and Kleiman2022) – apply conceptions of value considered “objective” yet highly abstracted from approaches to value found most among people who would benefit from redistribution. Situated valuation helps by moving away from presumed individual or bounded rationality as the central organizing concept of economic behavior, and instead views value as a loop between individual desire and collective meanings and deliberation.

This concept substantially builds on the work of economic anthropologist David Graeber in Toward an Anthropological Theory of Value (Reference Graeber2001). There, Graeber surveys the anthropological literature for development and uses of “value” to find that (1) the concept has been a staple of such writings since nearly the advent of the discipline and (2) there has been no consensus about its accepted meaning. He explains this as a result of the multivalence of the term, and then disaggregates it to find three parallel uses – sometimes joined in pairs, but rarely acknowledged as layered. These can be paraphrased as follows: willingness-to-pay Footnote ¹² valuation based on demand – what most lawyer-economists (and lawyers actually) are thinking of when utilizing the term; value as meaning in the linguistic sense; and value as desirability or measure of social goodness in the sociological or ethical sense (Graeber Reference Graeber2001). Interestingly, after initially separating these layers, Graeber then sees them as parts of a whole: “Value … can best be seen in this light as the way in which actions become meaningful to the actor by being incorporated in some larger, social totality – even if in many cases the totality in question exists primarily in the actor’s imagination” (Reference Graeber2001: xii). In other words, precisely because of its multivalence, value allows us to see the deeply integrative function of desire. It captures the relationship between wanting or needing something and being part of something.

The study of merit goods and the myriad questions they raise about society and culture remain an underexamined area for sociolegal research, and one that I am advocating in light of growing inequality. Situated valuation accounts for moral costs by considering how inequalities can cost the responsible community morally, and can therefore impact the value added by particular goods. As described above, situated valuation strengthens L&S’s approach to inequality by pinpointing exactly what it adds to extant economistic approaches and models.

But even as Calabresi rightly identifies the paucity of nuanced value theory in L&E (Reference Calabresi2016), “value” has enjoyed substantial attention in philosophy, sociology, and some economic theory. Lawyer-economists have appeared more open to theoretical advances from these fields than, for example, anthropology. These observations suggest at least some possibility of a “soft landing” for the claims raised in this piece. For instance, lawyer-economists may be most familiar with Becker’s (Reference Becker1996)book on tastes, where one entire chapter is dedicated to the “economic way of looking at life” (139). There, lamenting a narrow adherence to rational choice, Becker recognizes the relational (socially and temporally) nature of value:

Most interesting about this observation from a Nobel-Prize winning economist is not that “other individuals and organizations” influence economic choice, it is that they may determine those.

Similarly, Elizabeth Anderson’s seminal Value in Ethics and Economics (Reference Anderson1993) challenged the singular meanings assigned to “value” given what she called the inherently “pluralistic” character of value and evaluative faculties. Others have extended this nuanced perspective on value to suggest markets – where singular, generalized valuations can be enforced by the powerful – are limited in their moral capacity to meet the needs of many (Sandel Reference Sandel2012). And a related strand of thought has examined the sociality of money – the lingua franca of valuation across spaces and times (Zelizer Reference Zelizer1994).

The literature on value theory reflects a recognition of the need for nuance in fields adjacent to economics. Whereas lawyers have been slow to embrace anthropology, they have drawn from philosophy and sociology in attacking select problems about language and structure. I am suggesting that richer value theory from anthropology – hailed by Calabresi in the titular invite – has an important place among these extant contributions, and that, together, they can support a better understanding of distributive inequality and law.