Law Commons^™

Miscalculating Welfare, Michael B. Dorff, Kimberly Kessler Ferzan

All Faculty Scholarship

In their quest to maximize efficiency, law and economics scholars often produce novel, creative, and counterintuitive legal rules. Indeed, legal economists have argued for baby selling, against anti-discrimination laws in the workplace, and for insider trading. In this essay, we discuss some concerns about this form of legal scholarship that privileges the creative and counterintuitive over the fair, mundane, and intuitive. Drawing on a range of empirical evidence, this essay argues that the failure to include, and to give sufficient weight to, fairness preferences undermines legal economists' policy recommendations. Specifically, after setting forth three examples of this phenomenon, in the …

A Positive Theory Of Eminent Domain, Eric Kades

Eric A. Kades

The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor

Journal Articles

This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that …

E-J. Mestmäcker: A Legal Theory Without Law (Book Review), Péter Cserne

Péter Cserne

This is a book review of Ernst-Joachim Mestmäcker's A Legal Theory without Law: Ponser v. Hayek on Economic Analysis of Law (Tübingen: Mohr 2007)