Wednesday, January 18, 2006

Law & Economics (Response to Murky Thoughts)

Murky Thoughts responds to my original post; his response reproduced so I can refer to it more easily:
Fed judge Richard Posner is famous for rationalizing and making law on the basis of economic analysis. A treatise he wrote in (I think) '72 gets lots of citing. But this is just one school. Traditional judging I suppose might be called humanist or moralist. I don't know what it's actually called, but it's not hard to imagine how a judge might opine without recourse to economics. "That behavior is wrong. Beautiful, righteous behavior is just like that English court in 1522 said. You lose. Next!" It's moral turtles all the way down in law.
My own response, such as it is:

Yes, but... are there not several fundamental areas of law where economic analysis is basic to policy, or at least current interpretations of the law? Property law, for instance, and its cousin-in-nomenclature, intellectual property law, are lousy with economic analysis. (Much is made in property law of the notion of the so-called "Tragedy of the Commons," whose problem and solutions are couched in economic terms.) Not that justifying the legal framework on an economic basis is wrong, per se, but it seems to me that it might be unnecessarily limiting.

Stanford law professor Mark Lemley touches on the false but pervasive (and therefore fast becoming true) analogy to of intellectual property to real propery in his recent article on "Property, Intellectual Property, and Free Riding" in the March 2005 Texas Law Review (abbreviated version here ).

There is also the legal notion of having "standing to sue," that is to say, being an injured party, without which no suit can be brought; as I understand it (remember, I haven't taken the classes yet), in tort law, for instance, and probably in much broader classes of civil law, the damage necessary to obtain "standing" is generally (explicitly?) presumed be of an economic nature. Again, it's not that there's anything wrong with this - but it is a pervasive, and an interestingly limited, framework. And, of course, it needn't be that way - presumably there are legal frameworks where it is not that way, or where it hasn't been that way in the past. (I'd be interested to find out if there are analogies, parallel cases, or insights that could be gleaned from, say, canon law...)

Sounds like I might be in for some comparative law and legal history classes if I can remain interested in this through 1L...

UPON FURTHER REFLECTION: Hell, it looks like I might have to read Posner. Thanks a lot, Murky Thoughts.


At 6:59 PM, Blogger MT said...

Happy to oblige.

At 11:46 AM, Blogger MT said...

BTW I see the "tragedy of the commons" argument as just a rationalization for the status quo after the fact of conquest by force, which is still legal, sort of, under the theory of adverse possession.


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