Externalization in Modern Law
This chapter explores examples of externalization, in which modern law tries to outsource its dilemmas to experts. It begins by examining a 2006 Supreme Court decision concerning property rights and environmental law. Justice Kennedy's concurring opinion in that case provides a classic example of trying to resolve a legal problem by calling for experts to parse through scientific distinctions, when those distinctions were beside the point in the case. The chapter then examines debates in modern antitrust law between Chicago School and post-Chicago scholars, which reflect concerns over whether courts have the ability to apply sophisticated economic analysis. The battle lines in these debates do not necessarily fall where one would expect.
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