• Video

What is Law and Economics?

Where did the Law and Economics movement come from? Professor Todd Zywicki explains the evolution of legal theory from the case method to legal realism to an economic approach to law. Richard Posner proposed law and economics as a way to analyze legal doctrines and cases. The method was demonstrably effective and is now used for many areas of law including torts, property, and contracts. https://youtube.com/watch?v=iA91I9Y8b88

Transcript

Law and economics arises out of a long jurisprudential evolution. In the 19th century, we saw the first creation of what we call the case method, which is how we continue to teach law school nowadays. And the idea was that law is a science. It's an autonomous science. And so just as a biologist might examine bugs or birds very closely to determine the essence of the bug or the bird, the idea was if you read hundreds of common law cases, you can understand what the common law is. And that there's a set of principles of the common law. That broke down in the 20th century, under the critique of what was called the legal realist movement and the legal realist movement said, well, there really is no there there. That there is no essential characteristics of the common law, that what it really is, is that there are policy beliefs sitting in the background that are basically driving all these these cases and explain these cases. And so the view of the legal realist was that we should understand and expressly adopt those policy views in determining what the law is and should be. The initial wave of that was to use social science, and in particular anthropology and sociology, was the vehicles that were developed to try to determine what the social function of law was and how it should be designed. Well, what scholars quickly discovered was that sociology and anthropology really just didn't have the analytical tools to explain the law, that they just were very weak. And they particularly were not able to explain what the law is from a positive or descriptive perspective. Law and economics arose then out of the breakdown of the traditional legal approach and the emptiness of the mid 20th century formulations of legal realism. And Richard Posner in the economic analysis of law who kind of created this field made a very bold statement. He basically said the underlying logic of the common law is economic, which is that by using simple economic concepts, we can explain and predict how certain cases are going to come out or how legal doctrine will develop. So that the old traditional approach was that if you read enough cases on consideration, you can figure out whether consideration is present in any given case. The legal realist view was either that consideration is a completely meaningless concept or as one legal realist said, the law is what the judge had for breakfast that morning, or that they had some kind of murky social science evidence on him. Posner said law and economics, a simple set of tools, can explain whether a court is gonna find a bargain in a given case or not. It can explain why courts award damages rather than awarding specific performance. It can explain the structure of default rules that we have in the law and who courts are gonna put the risk of a certain eventuality on, without the parties bargaining it. And that transformed law. Which is that Posner basically provided a formula that provided testable hypotheses in a social science type way of what the law would be when it came to the common law. That idea was applied across tort, contract, property in particular but to some extent, also other fields such as criminal law, civil procedure, and other sorts of things.

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