Category Archives: Law and Economics

Christoph Engel, ‘The Proper Scope of Behavioral Law and Economics’

Abstract Behavioral law and economics applies the conceptual tools of behavioral economics to the analysis of legal problems and legal intervention. These models, and the experiments to test them, assume an institution free state of nature. In modern societies, the law’s subjects never see this state of nature. However, a rich arrangement of informal and […]

Nathan Atkinson, ‘Designing Remedies to Compensate Plaintiffs for Unobservable Harms’

Abstract Despite the vast sums transferred through the legal system, the foundations of the procedures used to compensate plaintiffs for unobservable losses remain unclear. Standard remedies can compensate plaintiffs for unknown harms, but it is expensive to do so. Damage awards will generally undercompensate or overcompensate a plaintiff whose true harm is unknown, while equitable […]

Samuel Ernst, ‘Pluralism Applied: A Concordant Approach to Selecting Contract Rules’

Abstract Contract rules can be justified by utilitarian theories (such as efficiency theory), which are concerned with promoting rules that enhance societal wealth and utility. Contract rules can also be justified by rights-based theories (such as promissory and reliance theories), which are concerned with protecting the contractual freedom and interests of the individual parties to […]

Andreas Rahmatian, ‘The Nature of Laws in Law and in Economics’

Abstract With the evolution of the modern natural sciences in the seventeenth and eighteenth centuries the natural laws which the sciences discovered also became a model for the understanding of legal, social and economic ‘laws’, ideally with qualities similar to the laws of physics. However, legal rules are not laws in the sense of natural […]

Sunstein and Reisch, ‘Greener by Default’

Abstract Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging […]

Ashcroft and Barker, ‘Is Copyright Law Fit for Purpose in the Internet Era? An Economic and Legal Perspective’

Abstract This paper asks the question: ‘Is copyright law fit for purpose in the Internet era?’ to inform the debate on the development of a sustainable, online ecosystem from an economic and legal perspective. This paper concludes that the application of exceptions to copyright that benefit intermediary business models – combined with the limitation on […]

‘Uncovering Through Discovery’

Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, NBER Working Paper No 23866 (2017). Courts, practitioners, and scholars have recently focused on discovery costs in civil litigation. This produced recent amendments to the Federal Rules of Civil Procedure emphasizing that discovery requests be ‘proportional’ rather than excessive. But this focus has ignored […]

Anidjar, Zamir and Katz, ‘Enforced Performance vs Damages: An Empirical Study’

Abstract Legal economists and other theoreticians continuously debate the pros and cons of specific performance as a remedy for breach of contract; and comparative-law scholars debate the extent to which legal systems actually diverge on this issue. Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study the pertinent […]

Shmuel Becher, ‘Unintended Consequences and the Design of Consumer Protection Legislation’

Abstract The policy that guides consumer law strives to find the right balance between two conflicting forces. On the one hand, it seeks to intervene in the market to advance consumers’ interests and protect them. On the other hand, it aspires to avoid inefficient interventions that may impose excess hardship on businesses. Consumer law policy […]

Blankfein-Tabachnick and Kordana, ‘Kaplow and Shavell and the Priority of Income Taxation and Transfer’

Abstract This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently achieved through income taxation and transfer, as opposed to egalitarian alterations in private law rules. Kaplow and Shavell compare the efficiency of rules of tort to rules of tax […]