POSNER, ECONOMICS AND THE LAW: FROM LAW AND ECONOMICS TO AN ECONOMIC ANALYSIS OF LAW (original) (raw)
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Posnerian Jurisprudence and Economic Analysis of Law: The View from the Bench
University of Pennsylvania Law Review, 1985
Judge Richard A. Posner, of the United States Court of Appeals for the Seventh Circuit, is a renowned scholar in the field of law and economics. Since his appointment to the bench, on December 4, 1981, Judge Posner has had an opportunity to apply in his opinions some of the theories he has so forcefully propounded in his numerous books and articles.' Posner's innovative methodological approach has won him widespread fame and criticism and has made him a top contender for nomination to the Supreme Court during President Reagan's second term. 2 The simple yet powerful idea that drives Posner's theories is that economic 3 analysis is a valuable tool for understanding, interpreting, and creating law. An examination of Posner's judicial work affords an unprecedented opportunity to evaluate the usefulness of economic analysis in judicial decisionmaking. Posner's opinions demonstrate some of the strengths and limitations of the economic analysis of law as a jurisprudential methodology. More importantly, an examination of Posner's opinions reveals t B.A. 1982, Yale University; J.D. Candidate, Ph. D. Candidate (Economics),
Posnerian law and economics on the bench
International Review of Law and Economics, 1984
has been one of the most productive and influential scholars working in the field of law and economics. Indeed, the prolific and wide ranging nature of his writings, the vigor with which he has advanced his particular approach and its supporting arguments, together with the absorbing quality of that approach, have in combination resulted in his having set the agenda for much of the scholarship-research and argument-during the last decade. l In fact, much of the work in the field of law and economics represents footnotes to and arguments over his approach and its many applications. Posner's approach to law and economics contains both a positive and a normative argument. In his positive writings, Posner argues that wealth maximization can be used to explain and describe the development and the evolution of the common law. Normatively, Posner argues that wealth maximization is a desirable, and feasible, principle for use in developing law and rights. In short, wealth maximization both is the explanation of law and rights and ought to be the basis for the development of law and rights. Such a summary perhaps states Posner's argument more baldly and less subtly than it warrants, but it does accord with his own characterization9 and it does represent what researchers in the field understand him basically to be saying.3 Although Posner's approach and specific arguments have been subjected to substantial and perhaps devastating criticism, it remains important, for reasons beyond the insights which it has provided to the particular areas of law on which he has written. Certainly Posner's work has underscored, perhaps with a vengeance and clearly with candor, the fact that both common and statute law have promoted the transformation of the legal foundations of the economy from a post-feudal to a capitalist or market economy, from one in which landed property (law, power and orientation) dominates to one in which nonlanded property dominates, and from one in which status unabashedly dominates to one in which contractual market relationships and transactions dominate (however much such may reflect and give effect to underlying power structures).4As such, legal institutions are not given immutably by nature but are themselves a response to economic needs and flexible in response to changes in those needs. Thus, law is neither absolute, nor exogenous, nor given, but a *Both authors acknowledge the assistance of Douglas Anderson and thank Professor Charles K. Rowley, Judge Richard A. Posner, and two anonymous reviewers for helpful comments.
Maynooth University, 2018
Review of the methodology used by Richard Posner in the area of the Economics analysis of law
George Mason University School of Law Posner , Hayek & the Economic Analysis of Law
2007
This Essay examines Richard Posner’s critique of F.A. Hayek’s legal theory and contrasts the two thinkers’ very different views of the nature of law, knowledge, and the rule of law. Posner conceives of law as a series of disparate rules and as purposive. He believes that a judge should examine an individual rule and come to a conclusion about whether the rule is the most efficient available. Hayek, on the other hand, conceives of law as a purpose-independent set of legal rules bound within a larger social order. Further, Posner, as a legal positivist, views law as an order consciously made through the efforts of judges and legislators. Hayek, however, views law as a spontaneous order that arises out of human action but not from human design. For Hayek, law as a spontaneous order—of which the best example is the common law—contains and transmits knowledge that no one person or committee could ever know, and thus regulates society better than a person or committee could. This limits t...
The Problems of Jurisprudence by Richard A. Posner
1990
Reviewed by Raymond B. Marcin* Dust off those old copies of William James.' Pragmatism is "in." 2 Richard A. Posner's newest book, THE PROBLEMS OF JURISPRUDENCE, may well signal the vocabulary of Pragmatism as the lingua franca of jurisprudence in the 1990's. Those who are looking for a "unified field theory" to encompass all of the insights of the great jurisprudential movements of today will find something to chew on in Posner's new book. He does not announce such a theory; in fact, he all but discounts it in his treatment of literary, feminist, and criticalist jurisprudence. In his endorsement of philosophical pragmatism, however, he provides a vocabulary and a set of concepts that render communication among the various contemporary schools, especially the law-and-economics and so-called new-legal-process schools, possible and even efficient. There is a surprise or two in the book for doctrinaire law-and-economics disciples. Posner actually modifies some of his previously published views on wealth maximization, which he now sees as playing only a "limited role" in his theory. 3 Indeed, he spends a goodly portion of the book recasting the wealth-maximization approach to law in pragmatic terms. 4 In reading the * Judge of the United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School.
Law and Economics in the United States: A Brief Historical Survey
Cambridge Journal of Economics
This is the third of a series of Critical Survey articles. The aim of the series is to report on recent developments, to provide an assessment of alternative and to suggest lines of future inquiry. It is intended that the articles will be accessible not only to other academic researchers but also to students and others more practically involved in the economy.