Upload
arianna-starry
View
221
Download
0
Tags:
Embed Size (px)
Citation preview
The Measure of Law and Economics
Robert Cooter and Jody KrausEuropean Association of Law and Economics
22 September 2011
What is an x?
• What is a man? A rational animal. (Socrates)• What is justice? A utopian republic. (Plato)• What is law and economics?– Economic analysis applied to law?(Posner) – A non-legal form of reasoning? (Coleman)
Three Facts About History of Law and Economics in the U.S.A.
• Fact 1: Explosive growth of L&E beginning in 1980s
• Fact 2: L&E is strongest in the elite law schools.
• Fact 3: A small proportion of legal scholars follow the L&E approach.
• Fact 1: Explosive growth of L&E beginning in 1980s– Scholarship (citation studies –Landes)– Institutions (journals, associations, professors)
AALS Professors Teaching Law and Economics
Professors Teaching Law and Economics and Law School’s Ranking
Law Professors Teaching L&E Compared to All Law Professors
2.0% 2.4%
Two Enterprises
• Say what the law requires of people.
• Say what the law is.• Interpret laws.• Restate the law.• Offer legal reasons.• Determine the law’s
correct categories.
Legal ContentLegal Causes
• Prove the effects of laws.
• Find the empirical consequences of laws.
• Model responses to laws.
• Find what caused officials to make or repeal a law.
Examples of Two Enterprises
• Comparative negligence is the liability rule for automobile accidents.
• Disgorgement damages are available for breach of fiduciary duty.
• Article I Section 8 of the US constitution authorizes Congress to regulate commerce.
Legal ContentLegal Causes
• A negligence rule causes excessive activity by injurers.
• Expectation damages cause excessive reliance by promisees.
• Predictable judgments cause more settlements out of court.
• Compulsory racial integration of neighborhood schools caused residential segregation.
Explaining the Three Facts About History of Law and Economics in the U.S.A.
• Fact 1: Explosive growth of L&E beginning in 1980s.– Explanation: hole in ecology of ideas.
• Fact 2: L&E is strongest in the elite law schools.--Explanation: lower-level law schools teach legal facts, higher-level law schools teach legal reasoning.
• Fact 3: A small proportion of legal scholars follow the L&E approach--Explanation: Most law teaching concerns legal facts on the bar examination.
Economic and Legal Reasoning
In law, economic reasoning is immanent but seldom explicit. – Abstracts from the form of legal reasoning.– Occasionally explicit in legal reasoning.– Law and economics recedes as it succeeds.
Example: Hand Formula abstracts from balancing tests that pervade law, but the Hand Formula is found explicitly only in US tort law.
Conclusion:What is law and economics?
• Economic analysis applied to law? No.• A non-legal form of reasoning? No.
L&E = cause enterprise + content enterprise