Guido Calabresi
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300195897
- eISBN:
- 9780300216264
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300195897.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter explains the difference between law and economics, identified with John Stuart Mill, and the economic analysis of law, exemplified by Jeremy Bentham. It presents examples of ...
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This introductory chapter explains the difference between law and economics, identified with John Stuart Mill, and the economic analysis of law, exemplified by Jeremy Bentham. It presents examples of recent scholarship of both fields and where they fit historically and considers why legal scholars have a particularly important role to play in law and economics, and especially in its future. This discussion serves as an introduction to the rest of the chapters which form the core of this book. It uses a law and economics approach to discuss the role of the lawyer, merit goods, and the perdurance and proper analysis of altruism and of not-for-profit institutions. It also examines what the use of the liability rule tells us about the relationship between markets and command, what economics often says about the validity of various tastes and values, and what economics can say about the shaping of tastes and values.Less
This introductory chapter explains the difference between law and economics, identified with John Stuart Mill, and the economic analysis of law, exemplified by Jeremy Bentham. It presents examples of recent scholarship of both fields and where they fit historically and considers why legal scholars have a particularly important role to play in law and economics, and especially in its future. This discussion serves as an introduction to the rest of the chapters which form the core of this book. It uses a law and economics approach to discuss the role of the lawyer, merit goods, and the perdurance and proper analysis of altruism and of not-for-profit institutions. It also examines what the use of the liability rule tells us about the relationship between markets and command, what economics often says about the validity of various tastes and values, and what economics can say about the shaping of tastes and values.
Ernest J. Weinrib
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199665815
- eISBN:
- 9780191748622
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199665815.003.0002
- Subject:
- Law, Philosophy of Law, Law of Obligations
Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together ...
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Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together the three ideas of character, kind, and unity. Applied to private law, form refers to a mode of understanding that integrates the characteristic concepts, the distinctiveness, and the coherence the plaintiff-defendant relationship. Among these, coherence is paramount. Using loss-spreading as an illustration, this chapter elucidates the nature of coherence, its importance to private law as a justificatory enterprise, and its role in rendering private law intelligible. It concludes by examining the deficiencies from the formalist standpoint of some contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried's theory of contract as promise, and George Fletcher's theory of excuses).Less
Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together the three ideas of character, kind, and unity. Applied to private law, form refers to a mode of understanding that integrates the characteristic concepts, the distinctiveness, and the coherence the plaintiff-defendant relationship. Among these, coherence is paramount. Using loss-spreading as an illustration, this chapter elucidates the nature of coherence, its importance to private law as a justificatory enterprise, and its role in rendering private law intelligible. It concludes by examining the deficiencies from the formalist standpoint of some contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried's theory of contract as promise, and George Fletcher's theory of excuses).
Guido Calabresi
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300195897
- eISBN:
- 9780300216264
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300195897.001.0001
- Subject:
- Law, Constitutional and Administrative Law
In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy ...
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In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that this book advocates.Less
In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that this book advocates.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0017
- Subject:
- Law, Philosophy of Law
This chapter begins by examining some basics in Adam Smith's conception of economics, and then tells the story of the evolution of the law about mantraps in the 1820s in England and later in the ...
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This chapter begins by examining some basics in Adam Smith's conception of economics, and then tells the story of the evolution of the law about mantraps in the 1820s in England and later in the United States. This sets the scene for an examination of Posner's engagement with the same body of tort and criminal law, and with the concept of intention in the law, generally. The weaknesses at the heart of an Economic Analysis of Law are identified, and its unfitness for adjudication. Political community has no goal analogous to a one-project firm which can account completely to its shareholder's at project's end. The distinction between the intended and its foreseen or foreseeable side effects is appropriately relevant in law.Less
This chapter begins by examining some basics in Adam Smith's conception of economics, and then tells the story of the evolution of the law about mantraps in the 1820s in England and later in the United States. This sets the scene for an examination of Posner's engagement with the same body of tort and criminal law, and with the concept of intention in the law, generally. The weaknesses at the heart of an Economic Analysis of Law are identified, and its unfitness for adjudication. Political community has no goal analogous to a one-project firm which can account completely to its shareholder's at project's end. The distinction between the intended and its foreseen or foreseeable side effects is appropriately relevant in law.
Guido Calabresi
- Published in print:
- 2016
- Published Online:
- May 2016
- ISBN:
- 9780300195897
- eISBN:
- 9780300216264
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300195897.003.0007
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines how economics treats—and should treat—tastes and values. It first considers those tastes, values, and resulting costs that many economists seem to ignore, or treat as irrational ...
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This chapter examines how economics treats—and should treat—tastes and values. It first considers those tastes, values, and resulting costs that many economists seem to ignore, or treat as irrational or not worth paying attention to, while also insisting that economics has nothing to say as to the validity and merit of tastes and values. It then analyzes the nature of this paradoxical attitude before outlining some reasons for what economic theory is in fact doing when it accepts some tastes, values, and costs, and rejects others. It also looks at some costs and values whose setting aside seems to be completely unjustified and goes on to focus on the economic analysis of law conclusion that a society's treatment of some merit goods is irrational or is Pareto violative. The chapter concludes by assessing the external moral costs of the commodification and commandification of some goods and of wealth distribution-dependent transactions in other goods.Less
This chapter examines how economics treats—and should treat—tastes and values. It first considers those tastes, values, and resulting costs that many economists seem to ignore, or treat as irrational or not worth paying attention to, while also insisting that economics has nothing to say as to the validity and merit of tastes and values. It then analyzes the nature of this paradoxical attitude before outlining some reasons for what economic theory is in fact doing when it accepts some tastes, values, and costs, and rejects others. It also looks at some costs and values whose setting aside seems to be completely unjustified and goes on to focus on the economic analysis of law conclusion that a society's treatment of some merit goods is irrational or is Pareto violative. The chapter concludes by assessing the external moral costs of the commodification and commandification of some goods and of wealth distribution-dependent transactions in other goods.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0003
- Subject:
- Law, Philosophy of Law
This chapter explores a central enterprise of legal theory: the explanation and justification of law's presumptive moral authority. Section I shows that Raz's rejection of it rests on an unwarranted ...
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This chapter explores a central enterprise of legal theory: the explanation and justification of law's presumptive moral authority. Section I shows that Raz's rejection of it rests on an unwarranted assumption of social consensus. Section II surveys partly historically and partly systematically some main aspects of the struggle of contemporary social theories — notably Economic Analysis of Law, Game Theory, and Rational Choice Theory, with discussion also of Hobbes, Bentham, Kant, and Rawls — to make do with emaciated conceptions of practical reasonableness in relation to (in a broad sense) coordination problems. The critique suggests a better conception, and Section III returns to legal authority and the full conception of fairness that explains why a particular law can reasonably be judged morally binding even by those who regard it as unwise.Less
This chapter explores a central enterprise of legal theory: the explanation and justification of law's presumptive moral authority. Section I shows that Raz's rejection of it rests on an unwarranted assumption of social consensus. Section II surveys partly historically and partly systematically some main aspects of the struggle of contemporary social theories — notably Economic Analysis of Law, Game Theory, and Rational Choice Theory, with discussion also of Hobbes, Bentham, Kant, and Rawls — to make do with emaciated conceptions of practical reasonableness in relation to (in a broad sense) coordination problems. The critique suggests a better conception, and Section III returns to legal authority and the full conception of fairness that explains why a particular law can reasonably be judged morally binding even by those who regard it as unwise.
Eyal Zamir and Doron Teichman
- Published in print:
- 2018
- Published Online:
- June 2018
- ISBN:
- 9780190901349
- eISBN:
- 9780190901387
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190901349.003.0002
- Subject:
- Law, Philosophy of Law
While behavioral insights are vital to any theory of law, they are particularly important as qualifiers of standard economic analysis of law. Standard economic analysis assumes that people are ...
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While behavioral insights are vital to any theory of law, they are particularly important as qualifiers of standard economic analysis of law. Standard economic analysis assumes that people are rational maximizers of their own utility. As a normative theory, it ultimately takes into account only human welfare and focuses on maximization of aggregate social utility. This chapter offers a bird’s-eye view of economic analysis of law. It describes the main features of economic analysis in general, with a focus on positive economics, followed by a description of the tenets of the normative branch of economic analysis known as welfare economics.Less
While behavioral insights are vital to any theory of law, they are particularly important as qualifiers of standard economic analysis of law. Standard economic analysis assumes that people are rational maximizers of their own utility. As a normative theory, it ultimately takes into account only human welfare and focuses on maximization of aggregate social utility. This chapter offers a bird’s-eye view of economic analysis of law. It describes the main features of economic analysis in general, with a focus on positive economics, followed by a description of the tenets of the normative branch of economic analysis known as welfare economics.
Jurgen Brauer, Charles H. Anderton, and David Schap
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199378296
- eISBN:
- 9780199378319
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199378296.003.0027
- Subject:
- Economics and Finance, International
The chapter reviews examples of legal instruments and institutions related to atrocity crimes such as genocide. It then discusses the efficiency, or lack thereof, of domestic and international law, ...
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The chapter reviews examples of legal instruments and institutions related to atrocity crimes such as genocide. It then discusses the efficiency, or lack thereof, of domestic and international law, both with general examples and with examples specific to cases of such crimes. Multilateral treaties are costly to negotiate and, hence, require commensurate benefits. These benefits can be “negative” for potentially affected populations, for example, when states negotiate escape clauses that reduce a treaty’s intent and effectiveness in regard to the prevention of atrocity crimes. The chapter also asks exactly what sort of economic goods are atrocity crime–related laws and treaties and how best to provide these goods. It finds that conceiving of these goods solely as global public goods, and advocating their global public provision, may not always help the cause of prevention.Less
The chapter reviews examples of legal instruments and institutions related to atrocity crimes such as genocide. It then discusses the efficiency, or lack thereof, of domestic and international law, both with general examples and with examples specific to cases of such crimes. Multilateral treaties are costly to negotiate and, hence, require commensurate benefits. These benefits can be “negative” for potentially affected populations, for example, when states negotiate escape clauses that reduce a treaty’s intent and effectiveness in regard to the prevention of atrocity crimes. The chapter also asks exactly what sort of economic goods are atrocity crime–related laws and treaties and how best to provide these goods. It finds that conceiving of these goods solely as global public goods, and advocating their global public provision, may not always help the cause of prevention.
Eyal Zamir and Doron Teichman
- Published in print:
- 2018
- Published Online:
- June 2018
- ISBN:
- 9780190901349
- eISBN:
- 9780190901387
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190901349.003.0001
- Subject:
- Law, Philosophy of Law
Standard economic analysis of law is based on rational choice theory. In recent decades, numerous experimental and empirical findings have established prevalent and systematic deviations from the ...
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Standard economic analysis of law is based on rational choice theory. In recent decades, numerous experimental and empirical findings have established prevalent and systematic deviations from the assumptions of economic rationality. These findings have been gradually integrated into mainstream economic analysis, including economic analysis of law, to form behavioral law and economics. The introduction highlights the important contributions of behavioral studies to economic analysis of law and to legal analysis more generally. It describes the scope of the book and outlines its structure. It also mentions legal spheres in which the existing scholarship does not yet lend itself to systematic synthesis.Less
Standard economic analysis of law is based on rational choice theory. In recent decades, numerous experimental and empirical findings have established prevalent and systematic deviations from the assumptions of economic rationality. These findings have been gradually integrated into mainstream economic analysis, including economic analysis of law, to form behavioral law and economics. The introduction highlights the important contributions of behavioral studies to economic analysis of law and to legal analysis more generally. It describes the scope of the book and outlines its structure. It also mentions legal spheres in which the existing scholarship does not yet lend itself to systematic synthesis.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580071
- eISBN:
- 9780191729393
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580071.003.0016
- Subject:
- Law, Philosophy of Law
An Economic Analysis of Law, as expounded by Posner, cannot provide moral criteria. Though economics usefully identifies side effects, economic reasoning is defeated by the incommensurables involved ...
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An Economic Analysis of Law, as expounded by Posner, cannot provide moral criteria. Though economics usefully identifies side effects, economic reasoning is defeated by the incommensurables involved in overall consequences of choices. The confusions involved in Dworkin's account of the value of human life, and in the minority judgments in the US Supreme Court in Cruzan's case (1990), and the dualism in these accounts is critiqued. Undignified conditions are to be distinguished from lack of human dignity. Death can reasonably be accepted as a side effect. The meaning of solidarity with and fidelity to the very dependent elderly is explored.Less
An Economic Analysis of Law, as expounded by Posner, cannot provide moral criteria. Though economics usefully identifies side effects, economic reasoning is defeated by the incommensurables involved in overall consequences of choices. The confusions involved in Dworkin's account of the value of human life, and in the minority judgments in the US Supreme Court in Cruzan's case (1990), and the dualism in these accounts is critiqued. Undignified conditions are to be distinguished from lack of human dignity. Death can reasonably be accepted as a side effect. The meaning of solidarity with and fidelity to the very dependent elderly is explored.
