LAW AND ECONOMICS When social scientists draw legal conclusions from limited data, many lawyers get uncomfortable. These same lawyers, however, are perfectly comfortable when traditional legal scholars draw conclusions from no data at all. (Cooter) The economist and the lawyer live in different worlds. (Stigler) For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. (Holmes) A lawyer who has not studied economics and sociology is very apt to become a public enemy. (Brandeis) Lawyers have only two reactions to statistical analysis: "it's obvious" or "it's wrong". (Miles) Much of what has been written against law and economics, however, is based on unsympathetic, insensitive, and largely superficial understandings of the central works in the field. (Coleman) When Aaron Director and Edward Levi launched the Journal of Law and Economics in 1958 the traditional attitude of each discipline toward the other had been one of indifference. Only gradually has that attitude been replaced by a mixture of cooperation and hostility. (Stigler) [E]conomic analysis of law need not be conducted at a high level of formality or mathematization. The heart of economics is insight rather than technique. (Posner) This article focuses upon the use of economics in the law, and in particular, at the US Supreme Court. Edmund Burke pointed out that such matters do not stir the soul. He said that 'the age of chivalry is dead'; 'that of sophists and calculators', i.e., lawyers and economists, 'is upon us'. And 'the glory of Europe is extinguished forever'. But there is no need for such pessimism. Men and women in our modern society seek prosperity; prosperity requires an economy that works well; that economy depends upon wellfunctioning governing rules of law; and to produce that law, at least sometimes, lawyers and economists must work together. (Breyer) ECONOMICS The only function of economic forecasting is to make astrology look respectable. (John Kenneth Galbraith) Economists put decimal points in their forecasts to show they have a sense of humor. (William Gilmore Smits) If you ask five economists you will obtain five different answers; six if one went to Harvard. (Edgar. R. Fiedler) An Indian born economist once explained his personal theory of reincarnation to his graduate economic class: 'if you are a good economist, a virtuous economist' he said 'you are reborn as a physicist. But if you are an evil, wicked economist, you are reborn as a sociologist. Too large a proportion of recent 'mathematical' economics are mere concoctions, as imprecise as the initial assumptions they rest on, which allow the author to lose sight of the complexities and interdependencies of the real world in a maze of pretentious and unhelpful symbols. (Keynes) A good mathematical theorem dealing with economic hypotheses is very unlikely to be good economics. (Marshall) 95 percent of economics is common sense – made to look difficult, with the use of jargons and mathematics. (Chang) In my youth it was said that what was too silly to be said may be sung. In modern economics it may be put in mathematics. (Coase) Economics itself remains the least empirical of the "social" sciences. Indeed, the word "social" is in quotation marks to highlight the point that much of economics is not really a social science at all, but is, rather, based on fairly abstract, sometimes unverifiable, and largely mathematically derived conclusions about human behavior. (Hovenkamp) LEGAL REASONING, ADJUDICATING There are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. (US Supreme Court, case Daubert) Judges, like other "refined" people in our society, are reticent about talking about sex, but judges are also reticent about talking about judging, especially talking frankly about it, whether to their colleagues or to a larger professional audience. (Posner) So although a judge of the Southern District of New York is required to follow Second Circuit rulings even if he thinks that all of the judges of the Second Circuit are idiots, the same judge may rely on an optional authority because he is persuaded that the authority knows what he is talking about, even if the judge does not know enough about the subject to know if the authority is actually right. (Schauer) The difference between a rule with an exception and a rule operating in the same way but without something that looks like an exception is often the product only of linguistic fortuity. 'No dogs except seeing eye dogs' looks different from 'Thou shalt not commit adultery' only because there is a word - 'adultery' - for sexual-intercourse-except-with-one's-wife, but there is no one word for dogs-except-seeing-eye-dogs. (Schauer) Reasoning with rules is perhaps the most common image of what lawyers and judges do. A widespread popular conception has it that lawyers argue their cases by appealing to abstruse rules not understandable by ordinary people, and that judges make their decisions by consulting books full of such rules. Having found the right rule, so it is thought, the judge proceeds to apply it mechanically to the case at hand, and that is the end of the matter. (Schauer) [Words] have meaning enough, as the scholarly critics themselves must surely believe when they choose to express their views in text rather than in music. (Scalia) RESEARCH (IN LAW) Being a researcher is just like being a barrister. You never ask the question if you do not know what the witness will answer. (Nelken) In academia, people tend to question your question instead of helping you to answer it. (Nelken) In examining any aspect of human life, an investigator may attempt to capture the full subtlety and intricacy of experience, seeking to understand and depict a complexity that is never absent from anything we do, individually or socially. Yet without denigrating such forms of inquiry, I choose to avoid them. Far too often such aspirations to comprehensive accuracy achieve their goals only by replicating the vagueness and the messiness of life. However faithful to reality these depictions may be, their accuracy often fails to increase our understanding. (Schauer) COMPETITION LAW The law against exclusionary practices by dominant firms should prevent the exclusion of rivals whose presence enhances consumer welfare (in this sentence it is crucial that there is no comma after 'rivals'). (Vickers) I got tired of antitrust because when the prices went up the judges said it was monopoly, when the prices went down, they said it was predatory pricing, and when they stayed the same, they said it was tacit collusion. (Coase, according to Schinkel and Tuinstra) EUROPEAN LAW Sovereignty is not like property which can be given up only when another person gains it, but more like virginity, something that can be lost by one without another's gaining it. Moreover loss of it in apt circumstances can even be a matter for celebration. (MacCormick) TORT LAW Why cannot a society simply decide ... who should receive any given entitlement, and then let its transfer occur only through a voluntary negotiation? Why, in other words, cannot society limit itself to the property rule? To do this it would need only to protect and enforce the initial entitlements from all attacks, perhaps through criminal sanctions, and to enforce voluntary contracts for their transfer. Why do we need liability rules at all? (Calabresi and Melamed) [According to economic analysts, t]he point of the legal norm of corrective justice is, in short, to have less need for the legal norm of corrective justice. (Gardner) A tort suit enables the victim of some injury to make her problem someone else's problem. (Coleman and Mendlow) |
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