A SCHOLARLY BOOK REPOSITORY
Mattei shows how concepts from economics can be applied to the study of comparative law. He then applies the concepts to several significant problems in comparative law, including the history and sources of law, differences between civil and common law systems, and the reasons for legal change and the movement of law from one country to another. He looks at specific problems in property, contracts, and trust law. Finally he uses the insights he has developed to understand the issues involved in changing law in developing countries and in formerly socialist countries.
This book will be of interest to scholars of law, economics, and development, as well as those interested in transformation in formerly communist states.
Ugo Mattei is Alfred and Hanna Fromm Professor of International and Comparative Law, Hastings College of Law, University of California; and Professor of Civil Law, University of Trento.
This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures.
These articles originally appeared in the Journal of Legal Studies.
Contributors:
- Matthew D. Adler - Gary S. Becker
- John Broome - Robert H. Frank
- Robert W. Hahn - Lewis A. Kornhauser
- Martha C. Nussbaum - Eric A. Posner
- Richard A. Posner - Henry S. Richardson
- Amartya Sen - Cass R. Sunstein
- W. Kip Viscusi
By what criteria should public policy be evaluated? Fairness and justice? Or the welfare of individuals? Debate over this fundamental question has spanned the ages.
Fairness versus Welfare poses a bold challenge to contemporary moral philosophy by showing that most moral principles conflict more sharply with welfare than is generally recognized. In particular, the authors demonstrate that all principles that are not based exclusively on welfare will sometimes favor policies under which literally everyone would be worse off. The book draws on the work of moral philosophers, economists, evolutionary and cognitive psychologists, and legal academics to scrutinize a number of particular subjects that have engaged legal scholars and moral philosophers.
How can the deeply problematic nature of all nonwelfarist principles be reconciled with our moral instincts and intuitions that support them? The authors offer a fascinating explanation of the origins of our moral instincts and intuitions, developing ideas originally advanced by Hume and Sidgwick and more recently explored by psychologists and evolutionary theorists. Their analysis indicates that most moral principles that seem appealing, upon examination, have a functional explanation, one that does not justify their being accorded independent weight in the assessment of public policy.
Fairness versus Welfare has profound implications for the theory and practice of policy analysis and has already generated considerable debate in academia.
The most exciting development in legal thinking since World War II has been the growth of interdisciplinary legal studies—the application of the social sciences and the humanities to law in the hope of making law less formalistic, more practical, better grounded empirically, bettered tailored to social goals. Judge Richard A. Posner has been a leader in this movement, and his new book explores its rapidly expanding frontier.
The book examines five principal areas or directions of interdisciplinary study: economics, history, psychology, the epistemology of law and the empirical study of law. These approaches are seen to interpenetrate and to compose a coherent body of legal theory—a unified framework for understanding such seemingly disparate phenomena as the economics of free speech, the intellectual history of economic analysis of law, the relation between income and liberty, the law of possession, the psychology of legal decisionmaking, the role of emotion in law, and the use of citation analysis to evaluate judges and law professors. The book carries on Posner’s project of analyzing the law as an institution of social governance.
Pointing out that all three institutions are massive, complex, and imperfect, Komesar develops a strategy for comparative institutional analysis that assesses variations in institutional ability. He then powerfully demonstrates the value of this analytical framework by using it to examine important contemporary issues ranging from tort reform to constitution-making.
"A compelling economic analysis. . . . This book remains one of the few concerning Japanese law that successfully brings to life the legal culture of Japan." —Bonnie L. Dixon, New York Law Journal
Using comparative case studies that address the United States, China, Germany, Japan, Korea, and Russia, Curtis J. Milhaupt and Katharina Pistor argue that a disparate blend of legal and nonlegal mechanisms have supported economic growth around the world. Their groundbreaking findings show that law and markets evolve together in a “rolling relationship,” and legal systems, including those of the most successful economies, therefore differ significantly in their organizational characteristics. Innovative and insightful, Law and Capitalism will change the way lawyers, economists, policy makers, and business leaders think about legal regulation in an increasingly global market for capital and corporate governance.
“Law and Public Choice is a most valuable contribution to the burgeoning literature. It
should be of great interest to lawyers, political scientists, and all others interested in issues at the intersection of government and law.”—Cass R. Sunstein, University of Chicago Law
School
What is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions? Eric Posner argues that social norms are sometimes desirable yet sometimes odious, and that the law is critical to enhancing good social norms and undermining bad ones. But he also argues that the proper regulation of social norms is a delicate and complex task, and that current understanding of social norms is inadequate for guiding judges and lawmakers. What is needed, and what this book offers, is a model of the relationship between law and social norms. The model shows that people's concern with establishing cooperative relationships leads them to engage in certain kinds of imitative behavior. The resulting behavioral patterns are called social norms.
Posner applies the model to several areas of law that involve the regulation of social norms, including laws governing gift-giving and nonprofit organizations; family law; criminal law; laws governing speech, voting, and discrimination; and contract law. Among the engaging questions posed are: Would the legalization of gay marriage harm traditional married couples? Is it beneficial to shame criminals? Why should the law reward those who make charitable contributions? Would people vote more if non-voters were penalized? The author approaches these questions using the tools of game theory, but his arguments are simply stated and make no technical demands on the reader.
The economy of the Roman Empire was predominantly agrarian: Roman landowners, agricultural laborers, and small tenant farmers were highly dependent upon one another for assuring stability. By examining the property rights established by the Roman government, in particular the laws concerning land tenure and the contractual relationships between wealthy landowners and the tenant farmers to whom they leased their land, Dennis P. Kehoe is able to demonstrate how the state fostered economic development and who benefited the most. In this bold application of economic theory, Kehoe explores the relationship between Roman private law and the development of the Roman economy during a crucial period of the Roman Empire, from the second to the fourth century C.E. Kehoe is able to use the laws concerning land tenure, and the Roman government's enforcement of those laws, as a window through which to develop a more comprehensive view of the Roman economy. With its innovative application of the methodologies of law and economics and the New Institutional Economics Law and the Rural Economy in the Roman Empire is a groundbreaking addition to the study of the Roman economy.
Dennis P. Kehoe is Professor of Classical Studies at Tulane University. He is the author of several books, including Investment, Profit, and Tenancy: The Jurists and the Roman Agrarian Economy(University of Michigan Press, 1997).
"Kehoe brings his deep expertise in Roman land tenure systems and his broad knowledge of the methodologies of New Institutional Economics to bear on questions of fundamental importance regarding the relationship of Roman law and society. Was governmental policy on agriculture designed to benefit large landowners or small farmers? What impact did it have on the rural economy? The fascinating answers Kehoe provides in this pathbreaking work should occasion a major reassessment of such problems by social and legal historians."
---Thomas McGinn, Department of Classical Studies at Vanderbilt University, and author of The Economy of Prostitution in the Roman World: A Study of Social History and the Brothel and Prostitution, Sexuality, and the Law in Ancient Rome
"A ground-breaking study using the principles of New Institutional Economics to analyze the impact of legal policy in balancing the interests of Roman tenant-farmers and landowners in the 2-4 centuries C.E. Kehoe's book will be essential reading for historians of the Roman Empire, demonstrating how the government overcame challenges and contradictions as it sought to regulate this enormous sector of the economy."
---Susan D. Martin, Department of Classics, University of Tennessee
"In Law and the Rural Economy, Kehoe brings to life the workings of the ancient economy and the Roman legal system. By analyzing interactions between the imperial government, landlords, and tenant farmers in provinces across the Empire, Kehoe opens insights into imperial economic policy. He handles a variety of challenging sources with mastery and wit, and his knowledge of scholarship is extensive and thorough, covering ancient history, textual problems in the sources, legal history and, perhaps most impressively, the modern fields of economic theory and 'law and economics.' Kehoe's innovative and sophisticated methodology sets his work apart. The book will make an important contribution to our understanding of access to the law and the effectiveness of the legal system, important topics for scholars of law, ancient and modern."
---Cynthia J. Bannon, Department of Classical Studies, Indiana University
Compiling case studies based on seven fascinating themes—karaoke-based noise complaints, sumo wrestling, love hotels, post-Kobe earthquake condominium reconstruction, lost-and-found outcomes, working hours, and debt-induced suicide—Law in Everyday Japan offers a vibrant portrait of the way law intermingles with social norms, historically ingrained ideas, and cultural mores in Japan. Each example is informed by extensive fieldwork. West interviews all of the participants-from judges and lawyers to defendants, plaintiffs, and their families-to uncover an everyday Japan where law matters, albeit in very surprising ways.
There are two kinds of knowledge law school teaches: legal rules on the one hand, and tools for thinking about legal problems on the other. Although the tools are far more interesting and useful than the rules, they tend to be neglected in favor of other aspects of the curriculum. In The Legal Analyst, Ward Farnsworth brings together in one place all of the most powerful of those tools for thinking about law.
From classic ideas in game theory such as the “Prisoner’s Dilemma” and the “Stag Hunt” to psychological principles such as hindsight bias and framing effects, from ideas in jurisprudence such as the slippery slope to more than two dozen other such principles, Farnsworth’s guide leads readers through the fascinating world of legal thought. Each chapter introduces a single tool and shows how it can be used to solve different types of problems. The explanations are written in clear, lively language and illustrated with a wide range of examples.
The Legal Analyst is an indispensable user’s manual for law students, experienced practitioners seeking a one-stop guide to legal principles, or anyone else with an interest in the law.
Given their cultural, intellectual, and scientific achievements, surely the Greeks were able to approach their economic affairs in a rational manner like modern individuals? Since the nineteenth century, many scholars have argued that premodern people did not behave like modern businesspeople, and that the “stagnation” that characterized the economy prior to the Industrial Revolution can be explained by a prevailing noneconomic mentality throughout premodern (and nonwestern) societies. This view, which simultaneously extols the “sophistication” of the modern West, relegates all other civilizations to the status of economic backwardness.
But the evidence from ancient Athens, which is one of the best-documented societies in the premodern world, tells a very different story: one of progress, innovation, and rational economic strategies. Making Money in Ancient Athens examines in the most comprehensive manner possible the voluminous source material that has survived from Athens in inscriptions, private lawsuit speeches, and the works of philosophers like Aristotle and Plato. Inheritance cases that detail estate composition and investment choices, and maritime trade deals gone wrong, provide unparalleled glimpses into the specific factors that influenced Athenians at the level of the economic decision-making process itself, and the motivations that guided the specific economic transactions attested in the source material. Armed with some of the most thoroughly documented case studies and the richest variety of source material from the ancient Greek world, Michael Leese argues that the evidence overwhelmingly demonstrates that ancient Athenians achieved the type of long-term profit and wealth maximization and continuous reinvestment of profits into additional productive enterprise that have been argued as unique to (and therefore responsible for) the modern industrial-capitalist system.
In this original study, Kantor uses economic analysis to show that, contrary to traditional historical interpretation, this conflict was centered on anticipated benefits from fencing livestock rather than on class, cultural, or ideological differences. Kantor proves that the stock law brought economic benefits; at the same time, he analyzes why the law's adoption was hindered in many areas where it would have increased wealth. This argument illuminates the dynamics of real-world institutional change, where transactions are often costly and where some inefficient institutions persist while others give way to economic growth.
On December 5, 2004, the still-developing blogosphere took one of its biggest steps toward mainstream credibility, as Nobel Prize–winning economist Gary S. Becker and renowned jurist and legal scholar Richard A. Posner announced the formation of the Becker-Posner Blog.
In no time, the blog had established a wide readership and reputation as a reliable source of lively, thought-provoking commentary on current events, its pithy and profound weekly essays highlighting the value of economic reasoning when applied to unexpected topics. Uncommon Sense gathers the most important and innovative entries from the blog, arranged by topic, along with updates and even reconsiderations when subsequent events have shed new light on a question. Whether it’s Posner making the economic case for the legalization of gay marriage, Becker arguing in favor of the sale of human organs for transplant, or even the pair of scholars vigorously disagreeing about the utility of collective punishment, the writing is always clear, the interplay energetic, and the resulting discussion deeply informed and intellectually substantial.
To have a single thinker of the stature of a Becker or Posner addressing questions of this nature would make for fascinating reading; to have both, writing and responding to each other, is an exceptionally rare treat. With Uncommon Sense, they invite the adventurous reader to join them on a whirlwind intellectual journey. All they ask is that you leave your preconceptions behind.
Hackney demonstrates how legal-economic thought has been affected by the prevailing philosophical ideas about objectivity, which have in turn evolved in response to groundbreaking scientific discoveries. Thus Hackney’s narrative is a history not only of law and economics but also of select strands of philosophy and science. He traces forward from the seventeenth-century the interaction of legal thinking and economic analysis with ideas about the attainability of certitude. The principal legal-economic theories Hackney examines are those that emerged from classical legal thought, legal realism, law and neoclassical economics, and critical legal studies. He links these theories respectively to formalism, pragmatism, the analytic turn, and neopragmatism/postmodernism, and he explains how each of these schools of philosophical thought was influenced by specific scientific discoveries: Newtonian physics, Darwin’s theory of evolution, Einstein’s theories of relativity, and quantum mechanics. Under Cover of Science challenges claims that the contemporary law and economics movement is an objective endeavor by historicizing ideas about certitude and empiricism and their relation to legal-economic thought.
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