Foundations of the Economic Approach to Law. Edited by AVERY WIENER KATZ

Transcription

1 Foundations of the Economic Approach to Law Edited by AVERY WIENER KATZ New York Oxford Oxford University Press 1998

2 Contents 1 Methodology of the Economic Approach, Behavioral Premises The Economic Approach to Human Behavior, 6 Gary Becker 1.2 Normative Premises Efficiency, Utility, and Wealth Maximization, 11 Jules Coleman Economic Reasoning and the Ethics of Policy, 18 Thomas Schelling 1.3 Models and Modeling The Distinction between Positive and Normative Economics, 25 Mark Blaug The Methodology of Positive Economics, 28 Milton Friedman Notes and Questions, 34 2 Two Competing Economic Models of Law, The Model of Market Failure Some Thoughts on Risk Distribution and the Law of Torts, 42 Guido Calabresi

3 xii Unity in Tort, Contract, and Property: The Model of Precaution, 51 Robert Cooter 2.2 The Model of Private Cooperation The Nature of the Firm, 60 Ronald Coase The Problem of Social Cost, 63 Ronald Coase 2.3 Comparing the Models: Transaction Costs When Does the Rule of Liability Matter?, 73 Harold Demsetz Notes and Questions, 78 Contents 3 A Survey of Basic Applications, Property Toward a Theory of Property Rights, 86 Harold Demsetz Property Rules, Liability Rules, and Inalienability. One View of the Cathedral, 94 Guido Calabresi and A. Douglas Melamed 3.2 Tort The Learned Hand Formula for Determining Liability, 105 Richard Posner Strict Liability versus Negligence, 109 Steven Shavell 3.3 Contract The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 116 Thomas Ulen 3.4 Criminal Law Crime and Punishment: An Economic Approach, 125 Gary Becker 3.5 Procedure An Economic Approach to Legal Procedure and Judicial Administration, 133 Richard Posner Detrebling versus Decoupling Antitrust Damages: Lessons from the Theory of Enforcement, 139 A. Mitchell Polinsky Notes and Questions, Refining the Model I: Strategic Behavior, Theory The Cost of Coase, 150 Robert Cooter

4 Contents Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior, 154 Robert Cooter, Stephen Marks, and Robert Mnookin 4.2 Applications Injury, Ignorance, and Spite: The Dynamics of Coercive Collection, 159 Arthur Left A Model in Which Suits Are Brought for Their Nuisance Value, 168 David Rosenberg and Steven Shavell The Strategic Structure of Offer and Acceptance, 171 Avery Katz An Economist's Perspective on the Theory of the Firm, 178 Oliver Hart Notes and Questions, 184 xiii 5 Refining the Model II: Risk and Insurance, Theory The Allocation of Risk and the Theory of Insurance, 189 Steven Shavell 5.2 Applications The First-Party Insurance Externality: An Economic Justification for Enterprise Liability, 195 Jon Hanson and Kyle Logue Impossibility and Related Doctrines in Contract Law: An Economic Analysis, 204 Richard Posner and Andrew Rosenfield An Economic Analysis of Legal Transitions, 212 Louis Kaplow The Optimal Tradeoff between the Probability and Magnitude of Fines, 222 A. Mitchell Polinsky and Steven Shavell Notes and Questions, Refining the Model III: Information, Theory The Economics of Information, 234 George Stigler The Market for Lemons: Qualitative Uncertainty and the Market Mechanism, 239 George Akerlof 6.2 Applications The Contract-Tort Boundary and the Economics of Insurance, 245 William Bishop

5 xiv Contents The Informational Role of Warranties and Private Disclosure about Product Quality, 250 Sanford Grossman The Value of Accuracy in Adjudication, 255 Louis Kaplow Notes and Questions, Refining the Model IV: Bounded Rationality, Theory Rationality in Psychology and Economics, 270 Herbert Simon The Framing of Decisions and the Psychology of Choice, 274 Amos Tversky and Daniel Kahneman 7.2 Applications Imperfect Information in Markets for Contract Terms, 284 Alan Schwartz and Louis Wilde The Fresh-Start Policy in Bankruptcy Law, 291 Thomas Jackson Some Implications of Cognitive Psychology for Risk Regulation, 299 Roger Noll and James Krier Notes and Questions, Critiques of the Economic Approach, The Liberal Critique Is Wealth a Value?, 314 Ronald Dworkin 8.2 The Paternalist Critique Distributive and Paternalist Motives in Contract and Tort Law, 319 Duncan Kennedy 8.3 The Radical Critique Legal Economists and Normative Social Theory, 326 Mark Kelman 8.4 The Sociological Critique Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County, 333 Robert Ellickson 8.5 The Communitarian Critique Ethical Theory and the Case for Concern about Charges, 344 Steven Kelman 8.6 The Legal Realist Critique Economic Analysis of Law: Some Realism about Nominalism, 353 Arthur Alan Leff Notes and Questions, 364

6 Contents 9 An Application on the Frontier: Family Law, 371 xv The Family and the State, 373 Gary Becker and Kevin Murphy The Economics of the Baby Shortage, 380 Elisabeth Landes and Richard Posner The Role of Private Ordering in Family Law: A Law and Economics Perspective, 390 Michael Trebilcock and Rosemin Keshvani Notes and Questions, 396