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The Normativity Of Law In Law And Economics, Péter Cserne

Péter Cserne

This paper is about some theoretical and methodological problems of law and economics. I will use game theoretical insights to address an issue which is relevant both for law and economics and legal philosophy: How should a social scientific analysis of law account for the normativity of law, i.e. the non-instrumental reasons for rule-following while retaining the observer’s (explanatory or descriptive) perspective. My goal is to offer a constructive critique of both traditional law and economics scholarship and mainstream analytical legal philosophy in this respect. I will try to find out how law and economics has to account for the …

On The Misuse Of The Nash Bargaining Solution In Law And Economics, Abraham L. Wickelgren

ExpressO

Bargaining plays a very important role in a great deal of legal scholarship, particularly in law and economics scholarship. Scholars often assume that the Nash bargaining solution determines the bargaining outcome, where the parties equally split the joint benefit created by the agreement. This solution, however, is inappropriate when parties have outside options, alternatives that only provide a payoff if the bargainer terminates the original bargaining. Most legal bargaining problems involve outside options. This article explains why the Nash bargaining solution generates an inappropriate outcome in this situation. Then, it examines several different prior articles that have used the Nash …

A Public Choice Theory Of Criminal Procedure, Vikramaditya S. Khanna, Keith N. Hylton

ExpressO

We provide a more persuasive justification for the pro-defendant bias in Anglo-American criminal procedure than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias is that the costs of false convictions – specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions – are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of pro-defendant procedural rules. Under our alternative justification, pro-defendant protections serve primarily as constraints on the costs associated with improper enforcement or rent seeking …

Gödel, Kaplow, Shavell: Consistency And Completeness In Social Decision-Making, Giuseppe Dari Mattiacci

Chicago-Kent Law Review

The recent debate on what criteria ought to guide social decision-making has focused on consistency: it has been argued that criteria contradicting one another—namely, welfare and fairness—should not be simultaneously employed in order for policy assessment to be consistent. This Article raises the related problem of completeness—that is, the question of whether or not a set of consistent criteria is capable of providing answers to all social decision problems. If not, as it is suggested might be the case, then the only way to decide otherwise undecidable issues is to simultaneously employ both welfare and fairness, which implies a certain …

Governance Structures, Legal Systems, And The Concept Of Law, Lewis A. Kornhauser

Chicago-Kent Law Review

Debate over the concept of law currently contrasts conceptual and interpretive accounts. This Article begins to elaborate a social-scientific conception of law as a subset of a concept of a governance structure. To begin, it distinguishes institutional structures, realized institutions, and functioning institutions. Governance structures consist of institutional structures that perform central tasks of governance. Dworkin's interpretive conception of law extends over the domain of functioning institutions; positivist, conceptual accounts of law extend over the domain of institutional structures. From this perspective legal systems may be best understood as governance structures that satisfy the political value legality; different concepts of …

Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick

Chicago-Kent Law Review

Functional law and economics, which draws its influence from the public choice school of economic thought, stands as a bridge between the strictly positivist and normative approaches to law and economics. While the positive school emphasizes the inherent efficiency of legal rules and the normative school often views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law's ability to remedy those failures on …

What Legal Scholars Can Learn From Law And Economics, Anthony Ogus

Chicago-Kent Law Review

The starting point of this Article is Richard Posner's statement of regret (in 1975) that, in terms of legal scholarship, "normative analysis vastly preponderates over positive," and that this can be corrected by the economic analysis of law. I consider that the positive, predictive contribution of law and economics is still undervalued. Lawyers, practitioners and academics, have much to learn from economic analysis because so often they fail to understand the nature of the interaction between law and market phenomena. This Article explores three areas of analysis to justify this contention: the interplay between public and private incentive systems to …

The Networking Economic Effects Of Whiteness, Brant T. Lee

American University Law Review

Network economic analysis provides an important and intuitive explanation of racial inequality. In short, Whiteness is Microsoft's Windows operating system, or the QWERTY keyboard, or the standard (non-metric) measurement system, and difficult to dislodge for many of the same reasons. Network effects explain how the establishment of a dominant market standard 1) can be contingent on historical context, 2) does not necessarily derive from superior intrinsic merit, and 3) exhibits strong self-reinforcing characteristics that can maintain the dominance of the standard in perpetuity, even in the absence of any explicit or conscious determination to maintain it. All of these factors …

The Unexpected Guest: Law And Economics, Law And Other Cognate Disciplines, And The Future Of Legal Scholarship, Thomas S. Ulen

Chicago-Kent Law Review

This Article argues that law and economics has worked a remarkable but unexpected change on legal scholarship. Many critics mistakenly claim that the most notable effect of law and economics lies in its conclusions about substantive legal rules. This Article argues that this criticism misses the far more radical effect of law and economics on the study of law—namely, its commitment to the scientific method of inquiry, a method that relies upon theorizing, then performing empirical work to verify or refute the theory, and then refining the theory in light of the results. The Article explains why this change has …

Fairness And Welfare From A Comparative Law Perspective, Horacio Spector

Chicago-Kent Law Review

This Article discusses the relative value of law and economics and moral philosophy to explain private law in both common law and civil law jurisdictions. It argues that the recent philosophical paradigm, which revolves around the ideas of fairness and autonomy, is intellectually continuous with the School of Rationalist Natural Law. Though this School has been directly influential on the development of civilian private law, its ascendancy on common law cannot be documented. Paradoxically, recent philosophical explanations of private law bear on common law, while legal philosophers in civil law jurisdictions still follow Kelsen's research agenda, which focuses on the …

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

ExpressO

No abstract provided.

Secrets And Liens: Verification And Measurement In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article argues that commercial finance law increasingly uses contract rules to displace property rules, especially as these rules pertain to verifying and measuring property interests. In this context, verification simply means confirming the existence of a property interest, such as a lien or security interest. Measurement means determining the relationships of various property interests to one another (i.e., the priority of interests).

Historically, commercial finance law – in particular the Uniform Commercial Code, which governs loans secured by personal property – provided that something would be treated as “property” only if its property character was fairly easy to discover. …

Known Unknowns: The Delusion Of Terrorism Insurance, Michelle Boardman

ExpressO

No abstract provided.

On The Alienation Of Legal Claims, Michael Abramowicz

ExpressO

Courts have become increasingly skeptical about rules restricting plaintiffs’ ability to sell legal claims, and legal commentators have argued that markets for claims would be efficient, moving claims to those who can prosecute them most efficiently. Claim sales intuitively might appear to present a clash of economic and philosophical arguments, with perceived efficiency benefits coming at the expense of societal commitments to values other than efficiency. In this Article, Professor Abramowicz argues that economic and philosophical arguments do point in opposite directions, but in the reverse directions from what one might expect. A range of philosophical and other noneconomic considerations, …

In Defense Of Paid Family Leave, Gillian Lester

ExpressO

In this article I defend state provision of paid family leave. Such a program would allow workers to take compensated time off work to care for a newborn infant or ill family member. I normatively ground my claim in the argument that paid leave would allow women, who have historically performed a disproportionate share of family caregiving labor, to participate more fully in the paid workforce. This enhancement in labor force participation, I argue, would in turn increase women's independence and capacity to determine the conditions of their lives. In taking this position, I distinguish myself from those who would …

Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan

Faculty Scholarship

International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. To be sure, almost all academic discussions on the subject begin by asking whether international law constitutes "law." But the category of all "international law" is too big and heterogeneous to permit useful analysis. Whether to regard, say, the rules governing the conduct of war or international humanitarian law as "law" presents radically different issues than analyzing the legal character of the Treaty of Rome (the constitutive instrument of the European Community), or the Warsaw Convention (the instrument governing contracts for the carriage …

The Basics Matter: At The Periphery Of Intellectual Property, F. Scott Kieff, Troy A. Paredes

GW Law Faculty Publications & Other Works

Controversies often arise at the interfaces where intellectual property ("IP") law meets other topics in law and economics, such as property law, contract law, and antitrust law. Participants in the debates over how to mediate these interfaces often view each interface as a special case deserving unique treatment under the law. The doctrines of copyright and patent misuse are cases in point: they graft select antitrust principles onto copyright or patent law, even though there is an entirely distinct body of law - antitrust law - designed to deal with the putative concerns about competition that allegedly give rise to …

The Political Economy Of The Production Of Customary International Law: The Role Of Non-Governmental Organizations, Donald J. Kochan

Donald J. Kochan

Increasingly, United States courts are recognizing various treaties, as well as declarations, proclamations, conventions, resolutions, programmes, protocols, and similar forms of inter- or multi-national “legislation” as evidence of a body of “customary international law” enforceable in domestic courts, particularly in the area of tort liability. These “legislative” documents, which this Article refers to as customary international law outputs, are seen by some courts as evidence of jus cogens norms that bind not only nations and state actors, but also private individuals. The most obvious evidence of this trend is in the proliferation of lawsuits against corporations with ties to the …