After the Great Recession: Law and Economics’ Topics of Invention and Arrangement and Tropes of Style

Abstract

In the work, The Great Recession and the Rhetorical Canons of Law and Economics, 58 LOY. L. REV. 101 (forthcoming, 2012), the Author examined the role of law and economics in the Great Recession of 2008 and onward by examining neoclassical and contemporary law and economics from the perspective of legal rhetoric. The modern, neoclassical school of law and economics — often labeled the "Chicago School" — has had great influence on the American economy and financial system because of its rhetorical canons: mathematical and scientific methods of analysis and demonstration; the characterization of legal phenomena as incentives and costs; the rhetorical economic concept of efficiency; and rational choice theory as corrected by modern behavioral social sciences, cognitive studies, and brain science. These canons have made law and economics a persuasive method of legal analysis and a powerful school of contemporary legal rhetoric.

This Article continues the critical conversation by focusing attention on the specific rhetorical topics (topoi) of invention and arrangement and tropes of style that carry out the rhetoric of law and economic. With regard to each topic and trope, the Article will examine the proper and sometimes improper or unethical use of the topic or trope within the rhetoric of law and economics, and it will discuss the prescriptive implications of the use of law and economics’ topics of invention and arrangement and tropes of style in general legal discourse when evaluated in comparison to the other schools of classical and contemporary legal rhetoric. My conclusion is that the topics of invention and arrangement and tropes of style of law and economics have applications in legal discourse beyond the economic analysis of law, but the topics and tropes are subject to abuse and must be used ethically and with careful regard to their propriety as a tool to create meaning and inspire imagination and not as a tool of deception or obfuscation within the rhetorical situation at hand.

Keywords: rhetoric, rhetorical topoi, rhetorical topics, tropes, topics of arrangement, tropes of style, law and economics, economic analysis of law, Chicago School, neoclassical law and economics

JEL Classification: A10, A13, B00, E00, F00, K00