The Lawyer - Economist at Chicago: Richard A. Posner and the Economic Analysis of Law (original) (raw)

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.

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),

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.

Economic Analysis of Law

The American Political Science Review, 1977

Law School, once began a review of an earlier effort in law-and-economics-essentially an economic assessment of our system of tort law-by noting "Torts is not my field." ' Nor is it mine, arid I must enter the same disclaimer as to contracts, crimes, antitrust, regulated industries, corporations, taxation, constitutional law, civil procedure, and other of the areas covered in Economic Analysis of Law. (Of course, many of these are not Posner's "fields" either, wherein may lie a problem with his book-at least in the eyes of some.) A review of this book in the usual fashion of book reviews-were it to be done competently-would require the efforts of a committee, for its treatment is broad, if not uniformly deep. The committee, moreover, would need economists as well as legal scholars from diverse interests among its membership. Posner's command of economics, so far as I am able to judge, goes well beyond mere familiarity or competence, and his use of economic analysis in the book-despite efforts to simplify and reduce 2-is hardly casual or undemanding.

On the Fitness between Law and Economics—Or Sunstein between Posner and Calabresi

Global Jurist, 2019

This article strengthens Calabresi’s call for a bilateral relationship between law and economics with two claims. The first claim is that the fitness analysis of Law and Economics (“concept-based fitness”) requires studying legal reasons and reasoning. This is a remarkable difference with the fitness analysis performed by the Economic Analysis of Law (“effect-based fitness”). Accordingly, Law and Economics and Economic Analysis of Law differ at the fitness stage already. The second claim is that Sunstein’s research on minimalism resonates well with Calabresi’s project although Sunstein has failed to acknowledge this in his book review. The article concludes with a discussion of how a minimalist approach contributes to a bilateral relationship between economics and law.

Gordon Tullock and the Virginia School of Law and Economics

Constitutional Political Economy, 2016

In 1999 Gordon Tullock became Professor at the George Mason University Law School. Tullock's arrival at George Mason brought the economics department and the law school close together. The work that resulted during those years consolidated the methodological foundations for a different way of thinking about the economic analysis of law-the "functional" approach to law and economics. The functional law and economics approach espoused by the Virginia School was not attacking any of the results of the Chicago School or the Yale School, but rather proposing a methodological shift. This paper presents some of the results developed by this school and illustrates Tullock's controversial positions on trials and on the common law system, through anecdotes, Tullock's own work and related scholarly contributions. Gordon Tullock's intellectual legacy spans a wide range of subjects, from constitutional political economy and public choice to bureaucracy, law, and bioeconomics (Rowley, 2012). Tullock distinguished himself as an economist through his vigorous dissent from mainstream economic analysis, and simultaneously