Friday, June 15, 2007

On "Cashing Out" and the spread of Econo-Speak

You've heard it over and over: the result of a legal argument is described as the way something is "cashed out." This sort of language appears in law workshops and papers that have nothing to do with cash registers, cash itself, or even economic analysis. I've heard this kind of argument made by legal historians taking about basic historical questions.

Lawrence Solom offers an example, in an interesting new paper just noted here. The abstract makes a common move, although it is unclear whether the cash analogy originates from Steven D. Smith, whose work he describes, or from Solom: "Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith's view is mistaken" (emphasis added).
Perhaps the desire to speak of cashing things out simply illustrates the way that in law school environments, which are inherently multidisciplinary, non-economists pay attention to the work of their economist colleagues, and end up picking up their way of speaking. Sort of the way a child might pick up a regional accent while at summer camp, but without losing his own cultural identity. Or perhaps it suggests something more, that thinking and speaking in economic terms has increasingly become a mode of discourse within the legal academy. A worldview. A conceptual universe, so that only those problems that fit, or are discernible, within that universe are seen as important. If it doesn't "cash out" in a positive way, why are you talking about it?
It seems at least worth reflecting on this, and whether or not it is a good thing. If anyone is tracking, and writing about, the ubiquity of econo-speak in recent legal scholarship, I would be interested to know about it.


John Linarelli said...

I am a law professor with philosophical training. Just to show how reductionist we all can be, I thought the phrase "cashed out" came from philosophy. Philosphers use it all the time as a way of saying, this is how the argument "resolves" or "plays out." I realize these aren't good descriptions, as they just "cash in" one metaphor for another! (Sorry) The use of the phrase in philosophy could explain why Larry Solum and Steve Smith, both legal philosophers, use it.

Nice blog, by the way.

John Linarelli

Mary L. Dudziak said...

Thanks for the comment. Over, say, the past 10 years, my sense has been that law & econ scholars have been the leading edge in using this sort of rhetoric, and that "cashing out" is just one of the phrases that has seemed to creep from law & econ into the broader law discourse. Not necessarily a negative thing, but something I think that's worth thinking about. But perhaps I'm wrong about this particular phrase. Or -- depending on the time horizon -- perhaps the impact of economic arguments, and an economic sensibility, is influencing pockets of the academy at different time, and what you're seeing in philosophy might be a carry-over from econ. This is an intellectual history question. I know of, but have not yet seen, some relevant work, and I'll blog about when it's moving toward publication. I'd be interested in hearing from others.