scholarly journals On the (Methodological) Future of Law and Economics. The Uneasy Burden of Value Judgments and Normativity

Global Jurist ◽  
2019 ◽  
Vol 19 (3) ◽  
Author(s):  
Paolo Silvestri
Keyword(s):  
Economic Analysis ◽  
Present Article ◽  
Law And Economics ◽  
Self Awareness ◽  
Economic Analysis Of Law ◽  
Value Judgments ◽  
Positive Approach ◽  
Problematic Relationship ◽  
Starting Point ◽  
The Future

Abstract Taking as its starting-point Guido Calabresi’s latest book – The Future of Law and Economics – the present article aims to explore the often neglected issue of value judgments and normativity in Law and Economics. I will show the importance of enquiring Calabresi’s methodological distinction between Law and Economics and Economic Analysis of Law and the related bilateralism thesis in order to understand the problematic relationship between methodological value judgments and ethical value judgments, the ‘distance’ between Calabresi and Posner and the problematic notion of reformism. Then I will try to introduce a different notion of normativity. I will also show the existence of an unresolved tension in Calabresi’s methodological discourse between a positive approach, which seems to be privileged in this book, and his insistence on the inevitability of value judgments in economic analysis. Finally, I clarify the reasons for the ‘ignorance’ of values by the economist by distinguishing between economists’ “lack of self-awareness”, economists’ idolatry and the economists’ lenses.

Of Law and Economics and Economic Analysis of Law: The Role of the Lawyer

Global Jurist ◽  
2019 ◽  
Vol 19 (3) ◽  
Author(s):  
Guido Calabresi
Keyword(s):  
Economic Analysis ◽  
Law And Economics ◽  
Economic Analysis Of Law ◽  
Yale University ◽  
The Future

Abstract This is the first chapter of The Future of Law and Economics: Essays in Reform and Recollection by Guido Calabresi, first published by Yale University Press in 2016.

scholarly journals The Road Not Taken – Reading Calabresi’s “The Future of Law and Economics”

Global Jurist ◽  
2019 ◽  
Vol 19 (3) ◽  
Author(s):  
Aleksandar Stojanović ◽  
Paolo Silvestri
Keyword(s):  
Economic Analysis ◽  
Law And Economics ◽  
Legal Institutions ◽  
Economic Analysis Of Law ◽  
Special Issue ◽  
Human Race ◽  
The Road ◽  
Future Developments ◽  
The Future ◽  
The Law

Abstract The publication of Guido Calabresi’s book “The Future of Law and Economics” has drawn a substantial amount of attention among law and economics scholars. We thought that the best way to devote special attention to this book was to devote a Special issue to it. This article situates Calabresi’s book among other reflections on the future of the discipline, introduces and explains the reasons behind this Special issue and discuss the organization and content of it. We emphasize how Calabresi’s historical-conceptual standpoint allows him to isolate the stakes of different future developments around the question of how could further appreciation of legal institutions that defy the standard economic assumptions help the field develop theoretically. Overall, the contributors all shared Calabresi’s attempt to restore the balance between Law and Economics and the need to better account for the “whole unanalysed experience of human race”, often neglected by the Economic Analysis of Law approach. Most disagreements are about the ‘how’. In any case, the search for the Law and Economics ‘not (yet) taken’ or for other “Law and … ” approaches is always open to the Future.

Behavioral Law and Economics

2018 ◽  
Author(s):  
Eyal Zamir ◽  
Doron Teichman
Keyword(s):  
Economic Analysis ◽  
Bounded Rationality ◽  
Law And Economics ◽  
Empirical Studies ◽  
Securities Regulation ◽  
Critical Examination ◽  
Entire Body ◽  
Economic Analysis Of Law ◽  
Behavioral Law And Economics ◽  
The Impact

In the past few decades, economic analysis of law has been challenged by a growing body of experimental and empirical studies that attest to prevalent and systematic deviations from the assumptions of economic rationality. While the findings on bounded rationality and heuristics and biases were initially perceived as antithetical to standard economic and legal-economic analysis, over time they have been largely integrated into mainstream economic analysis, including economic analysis of law. Moreover, the impact of behavioral insights has long since transcended purely economic analysis of law: in recent years, the behavioral movement has become one of the most influential developments in legal scholarship in general. Behavioral Law and Economics offers a state-of-the-art overview of the field. The book surveys the entire body of psychological research underpinning behavioral analysis of law, and critically evaluates the core methodological questions of this area of research. The book then discusses the fundamental normative questions stemming from the psychological findings on bounded rationality, and explores their implications for establishing the aims of legislation, and the means of attaining them. This is followed by a systematic and critical examination of the contributions of behavioral studies to all major fields of law—property, contracts, consumer protection, torts, corporate, securities regulation, antitrust, administrative, constitutional, international, criminal, and evidence law—as well as to the behavior of key players in the legal arena: litigants and judicial decision-makers.

Law and Economics

2020 ◽  
pp. 84-102
Author(s):  
Daniel B. Kelly
Keyword(s):  
Economic Analysis ◽  
First Generation ◽  
Law And Economics ◽  
Private Law ◽  
Foreseeable Future ◽  
Business Associations ◽  
The Third ◽  
Starting Point ◽  
The Law ◽  
The Impact

This chapter analyzes how law and economics influences private law and how (new) private law is influencing law and economics. It focuses on three generation or “waves” within law and economics and how they approach private law. In the first generation, many scholars took the law as a starting point and attempted to use economic insights to explain, justify, or reform legal doctrines, institutions, and structures. In the second generation, the “law” at times became secondary, with more focus on theory and less focus on doctrines, institutions, and structures. But this generation also relied increasingly on empirical analysis. In the third generation, which includes scholars in the New Private Law (NPL), there has been a resurgence of interest in the law and legal institutions. To be sure, NPL scholars analyze the law using various approaches, with some more and some less predisposed to economic analysis. However, economic analysis will continue to be a major force on private law, including the New Private Law, for the foreseeable future. The chapter considers three foundational private law areas: property, contracts, and torts. For each area, it discusses the major ideas that economic analysis has contributed to private law, and surveys contributions of the NPL. The chapter also looks at the impact of law and economics on advanced private law areas, such as business associations, trusts and estates, and intellectual property.

Comparative Law and Economic Analysis of Law

2019 ◽  
pp. 825-851 ◽  
Author(s):  
Florian Faust
Keyword(s):  
Economic Analysis ◽  
Subject Matter ◽  
Law And Economics ◽  
Comparative Law ◽  
Case Law ◽  
The Other ◽  
Economic Analysis Of Law ◽  
The Subject ◽  
The Relationship

This chapter discusses the relationship between comparative law and economic analysis of law. After providing an overview of the characteristics of the economic analysis of law, it explains how one of the two disciplines can operate as an ancillary discipline to the other; this has been termed ‘Comparative Law and Economics’. The next section describes how comparative law and economic analysis of law can be brought together by making one discipline the subject matter of the other. It suggests that the role of economic analysis of law may be greater in case law systems than in codified systems and that this role may vary according to the subject of legislation. The section concludes with considerations on the role comparative law plays and should play in different contexts. Finally, it is argued that comparative law and economics should not be considered a discipline on its own.

scholarly journals Compensation for Occupational Diseases and the Importance of Preventition: A Law and Economics Perspective

2007 ◽  
Vol 9 (2) ◽  
pp. 127-168 ◽  
Author(s):  
Michael G. Faure
Keyword(s):  
Social Security ◽  
Economic Analysis ◽  
Occupational Diseases ◽  
Law And Economics ◽  
Liability Insurance ◽  
Economic Analysis Of Law ◽  
Potential Influence ◽  
Work Related ◽  
Compensation Mechanisms ◽  
Preventive Effects

This paper deals with possible compensation mechanisms for damage caused by occupational diseases. Specific attention is paid to the potential influence of these compensation mechanisms on prevention of work related incidents. The economic analysis of law is used to pay attention to liability and liability insurance whereby both the preventive effects of liability and liability insurance are discussed as well as their capacity to compensate. Attention is equally paid to social security, compensation funds and first party as well as direct insurance schemes. Some empirical evidence concerning the effectiveness of various compensation mechanisms as far as the prevention of occupational diseases is concerned is also discussed.

The Economics of Fiduciary Law

2019 ◽  
pp. 665-685
Author(s):  
Richard R.W. Brooks
Keyword(s):  
Economic Analysis ◽  
Law And Economics ◽  
Structural Approach ◽  
Economic Analysis Of Law ◽  
Economic Agents ◽  
Institutional Economic ◽  
The Third ◽  
Personal Character ◽  
Economics Literature ◽  
The Law

This chapter examines the treatment of fiduciary law in the field of law and economics. It begins with a typology of three theoretical tracts that accounts for loyalty in economics: the first tract takes a structural approach to questions of loyalty and disloyalty based on models occupied by strictly rational economic agents who are unable to choose or act in any manner than that dictated by narrow self-interests; the second explains loyalty in terms of personal character or preferences for particular actions and choices; and the third approaches loyalty in terms of allegiances to relationships or associations and, more specifically, to their associated rules of conduct. The chapter then discusses these three theoretical tracts of loyalty by reviewing the law and economics literature on beneficiaries and fiduciaries in general, and principals and agents in particular. The discussion is organized along lines of the two branches of scholarship that defines the field of law and economics: institutional economic analysis and economic analysis of law.

On the Fitness between Law and Economics—Or Sunstein between Posner and Calabresi

Global Jurist ◽  
2019 ◽  
Vol 19 (3) ◽  
Author(s):  
Fabrizio Esposito
Keyword(s):  
Economic Analysis ◽  
Law And Economics ◽  
Remarkable Difference ◽  
Economic Analysis Of Law ◽  
Bilateral Relationship ◽  
Minimalist Approach ◽  
Fitness Analysis

Abstract This article strengthens Calabresi’s call for a bilateral relationship between law and economics with two claims. The first claim is that the fitness analysis of Law and Economics (“concept-based fitness”) requires studying legal reasons and reasoning. This is a remarkable difference with the fitness analysis performed by the Economic Analysis of Law (“effect-based fitness”). Accordingly, Law and Economics and Economic Analysis of Law differ at the fitness stage already. The second claim is that Sunstein’s research on minimalism resonates well with Calabresi’s project although Sunstein has failed to acknowledge this in his book review. The article concludes with a discussion of how a minimalist approach contributes to a bilateral relationship between economics and law.

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