• Video

When Do Lawyers Use Economics?

Judge Douglas Ginsburg demystifies economic analysis in law through clear examples. Using the Staples antitrust case, he demonstrates how simple economic concepts can powerfully influence legal outcomes. Basic economic literacy is essential for modern lawyers who want to strengthen a case for their client and hone their own abilities to make insightful arguments. https://youtube.com/watch?v=XeJAyVv7M7w

Transcript

When a law student is first confronted with economic analysis of law, it may seem off putting or mysterious or unfortunate because he or she avoided taking economics in college but in fact it's a fairly easy topic in which to become comfortable because the important points are so simple. Take the downward sloping demand curve. It's just a bunch of words until you say, here it is on a graph, and moreover, all we're saying is that when prices go up, the quantity demanded goes down. When something is less expensive, more of it will be consumed. That's why we put taxes on behavior we want to discourage. That's why we subsidize behavior we want to encourage. That's all you need to say for someone to grasp what we're talking about with a downward sloping demand curve. So, here's a simple example from an antitrust case. No jargon, no graphs, no mathematics at all. The question was a merger case involving Staples and wanting to acquire another so called office superstore chain. And the FTC, Federal Trade Commission, was opposing the merger. And in their brief, they included a chart with a matrix with nine cells. And what it showed was for three different products, the price of that product in markets where there were three competitors, two competitors, or just one firm. And all it showed was that the fewer the competitors, the higher the price. A simple graph, half a page. When the judge saw that, he didn't need to see any more. The rest of the brief was surplusage at that point. It becomes so obvious that the FTC had a strong position that the merger would concentrate the market and increase prices. Now, of course, it had a sophisticated economic analysis in the brief, and as well as a verbal accounting of what the precedents in the law suggested about the results. But that matrix basically made it impossible to not see the case. The way the Commission saw the case. One needs to go beyond restating the propositions and figuring out what is significant, what you can say by way of making an argument based on the economic analysis. So, for any practicing lawyer, it makes sense to be sufficiently familiar with the concepts to be able to ask oneself and answer with reasonable confidence, this would be worth presenting in terms of an economic argument in addition to whatever else I'm going to do. It won't always be possible or it won't be worth it because it's too complicated or require introducing concepts that the judge might have problems with, if it's a first time exposure to that idea. But it should always be part of the checklist when you're making an argument. What is the economic case for what I'm saying? And indeed, what's the economic case against what I'm saying? Because I may have to confront that as well. So a level of literacy in the field is a basic need, I would say, for anyone practicing law at any level of sophistication.

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