Neil Buchanan (George Washington), Bringing Law and Policy Back From the Efficiency-Based Analysis: Another Important Step Toward Refocusing on Justice (JOTWELL) (reviewing Jeremy Bearer-Friend (George Washington), Ari Glogower (Ohio State), Ariel Jurow Kleiman (Loyola-L.A.) & Clint Wallace (South Carolina), Taxation and Law and Political Economy, 83 Ohio St. L.J. 471 (2022) (reviewed by Hayes Holderness (Richmond) here)):
Do the goals of fairness, equity, social justice, or other explicitly normative approaches to analyzing law and policy have any place at all in modern scholarship? Some scholars, especially those who approach the world from an orthodox economic viewpoint, have tended to reject categorically the very idea that such concepts should supplant their purportedly hard-headed analysis–an analysis that they hold out as being superior to supposedly “soft,” “sentimental,” “moralistic,” or “subjective” anti-orthodox approaches. Increasingly, however, equity-based analysis has at least been permitted as a component of most legal scholarly discussions. That itself is progress.
Even so, there continues to be a presumed distinction between self-styled “objective” approaches and the approaches of those who focus on inequality, domination, and other such fundamental questions of social justice. The familiar “equity-efficiency tradeoff” encapsulates this tension, the notion being that there are two distinct analytical categories that are not merely separate but in opposition to each other–-that is, the tradeoff says that we must sacrifice some efficiency if we desire greater equity, or instead that we must agree to doom more people to poverty if we seek to maximize efficiency. But is there a better approach? Happily yes, as Taxation and Law and Political Economy, by Professors Bearer-Friend, Glogower, Jurow Kleiman, and Wallace, clearly suggests. ...
In the end, this article constitutes an important step forward, arguing at the very least that the old orthodox approach that treats markets as autonomous and logically prior to law is no longer tenable (and, I would add, never was) and at most that what we used to think of as a co-equal goal of policy analysis–efficiency–is merely a secondary matter of choosing the most useful means to reach our chosen ends. I might even call that radical.