As If: Why Legal Scholarship Needs Assumptions

SSRN Electronic Journal, 2013

In the present working paper we have hypothesized an explanation for the fact that the evaluation of the social impact of law is modeled predominantly by the economic efficiency concept. Considering the early stages of the concept's development, we try to make it more intelligible to the European lawyers. JEL Classification: K10.

2009

Abstract: Economic analyses of law predominate in the United States because they can claim to be objective and scientific thus verifiable and the basis of predictions and reproducible experiments. However, several of the claims of economic analysis of law go too far and are unrealistic.

California Law Review, 2000

The Journal of Law and Economics, 1993

I often say that when you can measure what you are speaking about, and express it in numbers, you know something about it; but when you cannot express it in numbers, your knowledge is of a meagre and unsatisfactory kind; it may be the beginning of knowledge, but you have scarcely, in your thoughts, advanced to the stage of Science, whatever the matter may be.

2014

Law and economics scholarship has been predominantly concerned with the content of legal rules rather than the process by which rules are created. The analytical separation of law by its formative process has resulted in an almost exclusive focus on the allocative efficiency of legal entitlements. According to this view, legal rights are treated as “commodities” that people (absent transaction costs and wealth effects) can freely buy and sell, such that the rights are allocated to their highest valued use. In this thesis, I maintain that this conventional approach needs to be integrated with a complementary, process-oriented analysis, capable of accounting for the causal relationship between the efficiency of legal rules and the efficiency of the lawmaking process. The central hypothesis of the present research is that the efficiency of the law-making process is not neutral with respect to the efficiency of the rules: the more efficient the process is in dealing with the pervasive i...

Law & Society: Public Law - Antitrust eJournal, 2021

The fundamental originating principle of law and economics (L&E) is that legal decisions should be (and are) based on maximizing efficiency. But L&E proponents do not define “efficiency” in the way agreed to by most economists, as Pareto Efficiency. A Pareto optimal condition is obtained when no one can be made better off without making someone worse off. Pareto Improvements are win-win changes where no losers exist. In the judicial system, however, there are always winners and losers, because under Article III § 2 of the Constitution a legal case does not exist unless there is a justiciable “case or controversy” in need of resolution. Unable to use Pareto Efficiency, L&E scholars have been forced to adopt alternative definitions of efficiency. Most L&E scholars claim to define “efficiency” based on the work of Kaldor and Hicks, but (perhaps unwittingly) instead use a definition of “efficiency” derived from the 19th century idea of consumer surplus, which encompasses L&E notions suc...

European Journal of Law and Economics, 2014

Legal certainty, a feature of the rule of law, constitutes a requirement for the operational necessities of market interactions. But, the compatibility of the principle of legal certainty with ideals such as liberalism and free market economy must not lead to the hastened conclusion that therefore the principle of legal certainty would be compatible and tantamount to the principle of economic efficiency. We intend to analyse the efficiency rationale of an important general principle of EU law-the principle of legal certainty. In this paper, we shall assert that not only does the EU legal certainty principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such. The economic perspective of the principle of legal certainty in the European context has, so far, never been adopted. Hence, we intend to fill in this gap and propose the representation of the principle of legal certainty as a principle of economic efficiency. After having A.

Russian Law Journal, 2015

In the present paper we have hypothesized an explanation for the fact that the evaluation of the social impact of law is modeled predominantly by the economic efficiency concept. Considering the early stages of the concept's development, we try to make it more intelligible to the European lawyers.

Chi.-Kent L. Rev., 2004

2011

The law fulfils important functions in society, contributing to its institutional structure, its policies and resolution of disputes. Workers employed in the law are providing a service, and economics can be applied to analyse the nature of this service. Such analysis must recognise the characteristics of law, including the costs and nature of deliberation. This requires more than the use of theoretical approaches which assume exogenous preferences and no transaction costs. Rhetoric is important in law, and there may be a rhetorical dimension to economics itself. This theme has led to the thesis having two components. The first considers methodological issues in the application of theories and techniques. The second then assesses aspects of the law. Groups and group cultures are considered as influences on academic disciplines including economics, and professions such as the law, as well as shaping political activity and social beliefs. The interpretation of theory as analogy is developed to evaluate the application of theory and empirical analysis to real world issues. Crossdisciplinary material is then used to provide alternative perspectives on democracy. These aspects assist in identifying possible failures in the formulation and implementation of law. From this foundation, and using selected criteria to assess policy development, parliamentary debate leading to changed legislation is investigated and limitations identified. Characteristics are then identified for the services provided to consumers by the legal sector. Provision involves a mix of participants, including lawyers, court staff and other professions. Process and persuasion are important, and there can be game playing between opposing parties. The result may be misleading signals to others operating-in the shadow of the law‖. Overall, concerns are identified about research methods, the quality of laws, the cost and quality of legal deliberation, and implications for behaviour by others. This a relatively untapped area with much potential for further research. I wish to thank all those who, in exchanges through various media and over many years, have contributed to the stimulating environment from which the ideas in this thesis have developed. These include colleagues, students, conference and seminar attendees and others I have only-met‖ through electronic communication. My supervisors, Allan Rae and Srikanta Chatterjee, helped steer this work to the current point. Many others may be unaware of the part they have played through a suggested reference, a question raised, or an argument that they have presented. It would be hard to single out individuals, but there are a few with whom I have had a long association over many years, who have become familiar with several of the areas covered here, and whose views I respect. They include the late Gary Buurman, Paul Callister, Philip Chapman, Bernard Robertson and Bryce Wilkinson. I am grateful to Alan Bollard for seeing potential in this area at an early stage and Muriel Newman for providing close exposure to political processes. I would also like to acknowledge the part played by my children in shaping the paths I have followed. They are grown and have their own lives now, but they have left their mark on this.