In France, John Baptist Say has the merit of producing a very superior work on the subject of Political Economy. His arrangement is luminous, ideas clear, style perspicuous, and the whole subject brought within half the volume of [Adam] Smith's work. Add to this considerable advances in correctness and extension of principles.

Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua (...) franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law? Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns. The results highlight the existence of two species or dialects of rights talk—the universalist dialect and the positive-rights dialect—both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community. The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law. (shrink)

"Law and Economics has become an established field worldwide and it may be argued that it is one of the few examples of a successful interdisciplinary project. This book explores whether, or to what extent, that interdisciplinarity has indeed been a success. It provides insights on the foundations and methods, achievements and challenges of Law and Economics, at a time when both the continuing challenges to academic economics and the growth of empirical legal studies raise questions about the identity and (...) possible further developments of the project. Through a combination of reflections on long-term trends and detailed case studies on current developments, contributors to this volume analyse whether and in which sense Law and Economics is a successful interdisciplinary endeavour. Inspired by insights from the philosophy of social sciences, the book shows how concepts travel between legal scholarship and economics, how they change meanings when applied elsewhere, how economic theories and models inform, and transform, judicial practice, and addresses whether the transfers of knowledge between economics and law are symmetrical exchanges between the two disciplines"--. (shrink)

This collection uses economic analysis to study some of the most pressing issues in corporate law. The last decade has brought certain corporate transactions and arrangements to the forefront of public attention and public debate. At the same time, a new mode of corporate law analysis has been developed - one that uses the tools of economics to identify the consequences and desirable features of corporate law rules. By bringing together work at the frontier of this method of analysis, the (...) volume provides a good picture of the power, current state, and future direction of the economic analysis of corporate law. Written by some of the most prominent contributors to the field, many of the chapters focus directly on the corporate control transactions that have recently attracted the most interest and controversy - corporate takeovers, buy-outs, recapitalizations, and reorganizations. (shrink)

The Law and Economics approach to law dominates the intellectual discussion of nearly every doctrinal area of law in the US and its influence is growing steadily outside America as well. 2013 marked the fortieth anniversary of the publication of Richard Posner's Economic Analysis of Law, the book that launched the Law and Economics movement. The eighth edition of the book was published in 2011, this time competing against over twenty textbooks, collections and casebooks on law and economics. Although there (...) has been phenomenal growth in this area questions remain. Why has Law and Economics movement become so successful? What is the current status of the Chicago School? What are the alternative theories and how much influence do they exert? What can be considered mainstream today? What are the norms and values underlying this impressive body of research? These issues, amongst others, are thoroughly explored by the contributors. (shrink)

This anthology illustrates how law and economics is developing in Europe and what opportunities and problems - both in general and specific legal fields - are associated with this approach within the legal traditions of European countries. The first part illuminates the differences in the development and reception of the economic analysis of law in the American Common Law system and in the continental European Civil Law system. The second part focuses on the different ways of thinking of lawyers and (...) economists, which clash in economic analysis of law. The third part is devoted to legal transplants, which often accompany the reception of law and economics from the United States. Finally, the fourth part focuses on the role economic analysis plays in the law of the European Union. This anthology with its 14 essays from young European legal scholars is an important milestone in establishing a European law and economics culture and tradition. (shrink)

This paper suggests the adoption of a ‘capability approach’ to key concepts in healthcare. Recent developments in theoretical approaches to concepts such as ‘health’ and ‘disease’ are discussed, and a trend identified of thinking of health as a matter of having the capability to cope with life’s demands. This approach is contrasted with the WHO definition of health and Boorse’s biostatistical account. We outline the ‘capability approach’, which has become standard in development ethics and economics, and show how existing work (...) in those areas can profitably be adapted to healthcare. Cases are used to illustrate the value of adopting a capability approach. (shrink)

This chapter contains sections titled: An Economic Model of Carroll Towing Relaxing the Model's Initial Assumptions Efficiency as a Norm Some Limitations of Law and Economics Conclusion References.

In "Behavioral Law and Economics: The Assault on Consent, Will, and Dignity," Mark D. White uses the moral philosophy of Immanuel Kant to examine the intersection of economics, psychology, and law known as "behavioral law and economics." Scholars in this relatively new field claim that, because of various cognitive biases and failures, people often make choices that are not in their own interests. The policy implications of this are that public and private organizations, such as the state and employers, can (...) and should design the presentation of options and default choices in order to "steer" people to the decision they would make, were they able to make choices in the absence of their cognitive biases and failures. Such policies are promoted under the name "libertarian paternalism," because choice is not blocked or co-opted, but simply "nudged." White argues that such manipulation of choice is impossible to conduct in people's true interests, and any other goal pursed by policymakers substitutes their own ends, however benevolent they may be, for people's true ends. Normatively, such manipulation should not be conducted because it fails to respect the dignity and autonomy of persons, what some hold to be the central idea in Kant's ethical system, and which serves to protect the individual from coercion, however subtle, from other persons or the state. (shrink)

In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which he identifies with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, "economic analysis of law," examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less (...) theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that Judge Calabresi advocates, in a series of eloquent, thoughtful essays that will appeal to students and scholars alike. (shrink)

The law and economics movement is the principal interdisciplinary field of legal studies. This paper traces the history of the movement and explains its basic principles, contrasts the version of the movement that predominates in the United States with the version that prevails in Europe, noting the greater emphasis of the former on substantive doctrine and of the latter on rule of law considerations, and emphasizes the importance of the movement for legal and economic reform in developing nations.

In the Winter 2017 edition of JLME, Dr. Carson outlined an economic approach to the epidemiology of HIV transmission within the gay community, with a special emphasis on mobile apps. His conclusion is that HIV transmission amongst the gay community constitutes a collective action problem, which is resolved by the social norm of using a condom. This article critiques Dr. Carson's approach from an economic perspective. By utilizing classic law and economic theory, this article will argue that HIV transmission may (...) not, in fact, constitute a collective action problem in economic terms, and that instead condom use as a method of disease protection in theory can arise from purely rational, market driven actions. To do so, it borrows from transactional theory of information asymmetry to show the potential to alert counterparts as to serostatus. This conclusion provides an important supplement to Carson: rather than social norms being the core driver in condom usage to prevent HIV, instead condom use may arise solely as a result of rational, private decision making arising from market signaling. The article then critiques its own findings to demonstrate that it is unclear whether Carson's argument or the argument in this paper is, indeed, correct — which may represent a limitation in the analytical techniques advanced. (shrink)

This anthology discusses important issues surrounding environmental law and economics and provides an in-depth analysis of its use in legislation, regulation and legal adjudication from a neoclassical and behavioural law and economics perspective. Environmental issues raise a vast range of legal questions: to what extent is it justifiable to rely on markets and continued technological innovation, especially as it relates to present exploitation of scarce resources? Or is it necessary for the state to intervene? Regulatory instruments are available to create (...) and maintain a more sustainable society: command and control regulations, restraints, Pigovian taxes, emission certificates, nudging policies, et cetera If regulation in a certain legal field is necessary, which policies and methods will most effectively spur sustainable consumption and production in order to protect the environment while mitigating any potential negative impact on economic development? Since the related problems are often caused by scarcity of resources, economic analysis of law can offer remarkable insights for their resolution. Part I underlines the foundations of environmental law and economics. Part II analyses the effectiveness of economic instruments and regulations in environmental law. Part III is dedicated to the problems of climate change. Finally, Part IV focuses on tort and criminal law. The twenty-one chapters in this volume deliver insights into the multifaceted debate surrounding the use of economic instruments in environmental regulation in Europe. (shrink)

In a published debate between Law and Economics avatar Judge Richard Posner and Professor Robin Malloy entitled ‘Is Law and Economics Moral?’, Malloy argued that the dominant methodology of Law and Economics is immoral. Malloy likened it to the Frankenstein Monster – an unholy, undead abomination that can go berserk despite its ostensibly benign provenience. Malloy claimed that wealth maximization applied to social discourse ‘reduces people to an human existence to imaginary variables for calculation’.

Despite the idiosyncratic behavior of individuals, empirical regularities exist in social and economic systems. These regularities often arise from simple underlying mechanisms which, analogous to the natural sciences, can be expressed as universal principles or laws. In this essay, I discuss the similarities between economic and natural phenomena and argue that it is advantageous for economists to adopt methods from the natural sciences to discover “universal laws” in economic systems.

This book brings together the most authoritative articles on Law and Economics and the interaction between the two disciplines as well as the use of economic tools to analyse legal problems. Aimed at students experiencing the subject for the first time, the selections are interlaced with a wealth of features including explanatory introductions and exercises. Key features of the reader include: - The accessibility of the material: the articles should be understandable to those with only a limited background in economics (...) and law. - The book’s focus on the most important and basic – foundational – issues in law and economics. - An exposition of the opposition between the different legal systems that exist in the world including common law, civil law and public law. - Debates viewed from the perspective of the scholars from a range of backgrounds are presented as well as all the key figures in economics and in law. The book should prove to be an essential resource to all students studying this burgeoning field and represents an exciting introduction to one of the key disciplines which has grown up in the social sciences in recent times. (shrink)

This book examines the most controversial issues concerning the use of pre-drafted clauses in fine print, which are usually included in consumer contracts and presented to consumers on a take-it-or-leave-it basis. By applying a multi-disciplinary approach that combines consumer's psychology and seller's drafting power in the logic of efficiency and good faith, the book provides a fresh and unconventional analysis of the existing literature, both theoretical and empirical. Moving from the unconscionability doctrine, it criticizes (and in some cases refutes) its (...) main conclusions based on criteria which are usually invoked to sustain the need for public intervention to protect consumers, and specifically related to Law (contract complexity), Psychology (consumer lack of sophistication criterion) and Economics (market structure criterion). It also analyzes the effects of different regulations, such as banning vexatious clauses or mandating disclosure clauses, showing that none of them protect consumers, but in fact prove to be harmful when consumers are more vulnerable, that is whenever sellers can exploit some degree of market power. In closing, the book combines these disparate aspects, arguing that the solution (if any) to the problem of consumer exploitation and market inefficiency associated with the use of contracts of adhesion in these contexts cannot be found in removing or prohibiting hidden clauses, but instead has to take into account the effects of these clauses on the contract as a whole. (shrink)

This is not another "law-and-econ" bashing symposium. Nor is the symposium's title intended to denigrate Chicago School law and economics any more than the term "Post-Keynesian economics" was intended to denigrate the work of John Maynard Keynes. Instead, this symposium marks the fact that many practitioners of law and economics have moved well beyond the stereotypes familiar to most legal academics. Rather than designating an entirely new school of thought, the term "Post-Chicago law and economics" refers to a new era (...) in which a variety of new questions about law and lawmaking is being asked and a variety of promising economic techniques is being used to answer them. Yet most legal academics who, like me, are not part of the law and economics movement are generally unaware of these changes. The purpose of this "Symposium on Post-Chicago Law and Economics" is to bring some of these new methods and questions to the attention of mainstream legal academics and others. The hope is that those who have shunned the economic analysis of law in the past may wish to reconsider their stance in light of what Post-Chicago law and economics has to offer. To facilitate this, the author uses this Foreword to summarize the new directions suggested by each of the symposium contributors, most of whom are practitioners of law and economics. (shrink)

In this volume, Charles Kindleberger makes a powerful case against the idea that any one model could be used to unlock the basic secret of economic history. It is essentially an exercise in methodology, addressed to economists and economic historians alike. He argues that too many economists discover a relationship or a uniformity in economic behaviour, develop a model, and use it to explain more than it is capable of, including, on occasion, all economic behaviour. These lectures discuss four 'laws' (...) in economics to show how uniformities can illuminate economic history in particular aspects. They illustrate the view that the economist or economic historian seeking to test analysis against historical data should have a variety of different models, and not just one. The implication is that however scientific and technical the tools, choosing them carefully to fit particular circumstances is itself an art. (shrink)

ECONOMICS AND LAW HAVE HISTORICALLY ATTENUATED THE CONTRIBUtion of ethics in their putative separation of fact and value. In this essay I argue that reconceptualizing the relationships between law, economics, and ethics reveals the shortcomings of positions that disavow ethics. In the first section I contend that thinkers must reread Adam Smith as an economist and a moral philosopher to appreciate his extended treatment of sympathy, conscience, and social justice. In the second section I appropriate the work of Amartya Sen (...) to examine the entanglement of fact and value in deliberating economic choices, including moral motivations and social evaluations that problematize reductive images of economic actors. Finally, I interrogate legal regulation of corporate governance with respect to the Enron scandal and the 2002 Sarbanes-Oxley Act. I argue that legal regulation is a necessary but not sufficient resolution to corporate misconduct because it too enervates ethics and bifurcates fact and value. (shrink)

. History of the concept of economic efficiency . INTRODUCTION James Buchanan won the Nobel Prize by proving that the process by which elected officials ...

Law and Economics deals with the economic analysis of legal relations, legal provisions, laws and regulations and is a research field which has a long tradition in economics. It was lost after the expulsion of some of the leading economists from Germany during 1933 to 1938, but then revived in Chicago. Both the subject of Law of Economics and the need for a concise Encyclopedia is particularly relevant in Europe today. Currently in the European Union there are several different legal (...) cultures: the Anglo-Saxon legal framework, the German legal framework, which for example also includes Greece, and the Roman legal family—three jurisdictions which have to be covered with one and the same theory. In the EU, the task of the European Commission to interact with the various European jurisdictions means different legal cultures collaborating and some degree of harmonization is necessary. The result is an immediate need, if only for the science, to show how a given problem is solved in each legal tradition and jurisdiction. This Encyclopedia provides both a common language and precise definitions in the field, which will be useful in the future to avoid misunderstandings during harmonization of EU Law. (shrink)

The moral heart of normative law and economics is efficiency, especially dynamic efficiency that takes incentive effects into account. In the economic theory, justificatory argument is inherently at the institutional- or rule-level, not an the individual- or case-level. InMarkets, Morals, and the Law Jules Coleman argues against the efficiency theory on normative grounds. Although he strongly asserts the need to view law institutionally, he frequently grounds his criticisms of law and economics in arguments from little more than direct moral intuition (...) about individual cases. He evidently holds that consent provides a better normative basis for law than does efficiency and he uses consent arguments to attack recommendations from scholars in law and economics. His own chief contribution, however, is to law and economics rather than to any alternative theory. (shrink)

This anthology highlights the theoretical foundations as well as the various applications of Behavioural Law and Economics in European legal culture. By the same token, it fosters the dialogue between European and American Law and Economics scholars. The traditional neo-classical microeconomic theory explains human behaviour by using Rational Choice. According to this model, people tend to maximize the difference between expected utility and cost ("expected utility theory"). This theory includes three assumptions: (1) unbounded rationality, (2) unbounded self-interest, and (3) unbounded (...) willpower. Behavioural Economics questions these assumptions and endeavours to render economic analysis more realistic by underpinning it with psychological insights. In recent years, the influence of Behavioural Economics on the Economic Analysis of Law has gained momentum. Behavioural Law and Economics generates a better theoretical understanding of legal phenomena and offers a multitude of applications in legislation and legal adjudication. This volume is testament to the growing and thriving Law and Economics movement in Europe. The European Law and Economics community has steadily grown and the yearly Law and Economics Conference at the law faculty of the University of Lucerne has successfully become a guiding star in the vast sky of Law and Economics. (shrink)

The Oxford Handbook of Law and Economics provides a broad overview of numerous current and developing topics in the field of law and economics. With contributions by over one-hundred experts in the field within one work, the volume covers issues ranging from as far as Law and Neuroeconomics to European Union Law and Economics to Feminist Theory and Law and Economics. Its detail and breadth make it an invaluable reference book and contribution to the field.

The Oxford Handbook of Law and Economics provides a broad overview of numerous current and developing topics in the field of law and economics. With contributions by over one-hundred experts in the field within one work, the volume covers issues ranging from as far as Law and Neuroeconomics to European Union Law and Economics to Feminist Theory and Law and Economics. Its detail and breadth make it an invaluable reference book and contribution to the field.

The Oxford Handbook of Law and Economics provides a broad overview of numerous current and developing topics in the field of law and economics. With contributions by over one-hundred experts in the field within one work, the volume covers issues ranging from as far as Law and Neuroeconomics to European Union Law and Economics to Feminist Theory and Law and Economics. Its detail and breadth make it an invaluable reference book and contribution to the field.

This article offers a feminist perspective on contract theories in law,economics and law-and-economics. It identifies masculine traits presentcontract theories in all three disciplines. It then describes andassesses some developments that appear to be ‘feminising’: Therecognition of the importance of social norms in contract theory andtheories of contract as relationship. The article's main claim is that amasculine model of decision-making persists even within the less overtlymasculine models of contract. The problem of sexually transmitted debtresulting from a surety contract is analysed in (...) detail as a specificexample supporting the article's general argument. The article concludesthat the way forward is to be found in a recognition of other ways ofmaking decisions. (shrink)

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the (...) suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case's express judicial reasoning. The classical view of precedential authority completely defuses Gilmore's charge of fraud. In Gilmore's view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists' view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore's claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law. Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory's embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late nineteenth-century classical theorists. (shrink)

This work analyzes the centrality of law in nineteenth-century historical and institutional economics and is a prehistory to the new institutional economics of the late twentieth century. In the 1830s the 'new science of law' aimed to explain the working rules of human society by using the methodologically individualist terms of economic discourse, stressing determinism and evolutionism. Practitioners stood readier than contemporary institutionalists to admit the possibilities of altruistic values, bounded rationality, and institutional inertia into their research program. Professor Pearson (...) shows that the positive analysis of law tended to push normative discussions up from the level of specific laws to that of society's political organization. The analysis suggests that the professionalization of the social sciences - and the new science's own imprecision - condemned the program to oblivion around 1930. Nonetheless, institutional economics is currently developing greater resemblances to the now-forgotten new science. (shrink)

This is an introductory book that targets the reader who has the ambition to apply economic analysis but may be missing a technical introduction to its mathematical techniques or seeks a structured elaboration of its philosophical principles. The book juxtaposes economic analysis with moral philosophy, political theory, egalitarianism, and other methodological principles and then passes to the details of methods such as model-building, derivatives, differential equations, statistical tests, and the use of computer programs.

The publication of Guido Calabresi’s book “The Future of Law and Economics” has drawn a substantial amount of attention among law and economics scholars. We thought that the best way to devote special attention to this book was to devote a Special issue to it. This article situates Calabresi’s book among other reflections on the future of the discipline, introduces and explains the reasons behind this Special issue and discuss the organization and content of it. -/- We emphasize how Calabresi’s (...) historical-conceptual standpoint allows him to isolate the stakes of different future developments around the question of how could further appreciation of legal institutions that defy the standard economic assumptions help the field develop theoretically. Overall, the contributors all shared Calabresi’s attempt to restore the balance between Law and Economics and the need to better account for the “whole unanalysed experience of human race”, often neglected by the Economic Analysis of Law approach. Most disagreements are about the ‘how’. In any case, the search for the Law and Economics ‘not (yet) taken’ or for other “Law and … ” approaches is always open to the Future. (shrink)

This chapter briefly reviews the present state of judgment aggregation theory and tentatively suggests a future direction for that theory. In the review, we start by emphasizing the difference between the doctrinal paradox and the discursive dilemma, two idealized examples which classically serve to motivate the theory, and then proceed to reconstruct it as a brand of logical theory, unlike in some other interpretations, using a single impossibility theorem as a key to its technical development. In the prospective part, having (...) mentioned existing applications to social choice theory and computer science, which we do not discuss here, we consider a potential application to law and economics. This would be based on a deeper exploration of the doctrinal paradox and its relevance to the functioning of collegiate courts. On this topic, legal theorists have provided empirical observations and theoretical hints that judgment aggregation theorists would be in a position to clarify and further elaborate. As a general message, the chapter means to suggest that the future of judgment aggregation theory lies with its applications rather than its internal theoretical development. (shrink)