Danny Sokol points to Spencer Webber Waller’s “The Chicago School Virus.” Given the paper’s title, the fact that I’ve written previously on the irresponsible or misleading usages of the term Chicago School, and the author’s predilection to take shots at the Chicago School more generally (previous attempts include describing Hovenkamp’s recent movement toward Chicago School views as imposing the “thinking man’s death sentence” on the U.S. antitrust system),  I was pleasantly surprised by the paper.  The paper is really about why the Chicago School succeeded in some substantive fields of law and not others. It is quite careful to avoid cheap mischaracterizations of the intellectual content of the Chicago School, and much more importantly, Waller offer some interesting insights about why certain intellectual movements succeed and fail in different areas of law.
From the abstract:
Part IV uses the viral metaphor to suggest two tentative hypotheses to explain the relative successes of the Chicago School in some fields and its relative failures to dominate the discourse in other fields. First, I contend that the more centralized the host body of law, the greater likelihood of success of a successful infection and the adoption of the new ideology. Second, I contend that the presence of a strong competing first principle in the host body of law will act as an effective antibody immunizing the host from the successful introduction of a new ideology, be it the Chicago School or other way of thinking and speaking about law.I then test these hypotheses by examining a wide range of legal discourse where the Chicago School has been introduced. Examples drawn from US and European antitrust law, consumer protection, child and family law, and even Catholic Social Thought illustrate how my hypotheses help explain where the Chicago School has succeeded or failed in changing the legal discourse, or where it is simply too soon to tell. Part VI concludes with my reflections on how the viral metaphor can be extended as well as some ironies that the metaphor suggests about the future influence of the Chicago School itself.
See also Hanno Kaiser’s take on why law and economics failed in Germany, along with the interesting comment thread which also migrated to Brian Leiter’s blog.
