Category Archives: Law and Economics

Diego Pestana, ‘The “Feel” Of A Case: Virtue Decisionmaking As The Correct Approach For Deciding Cases In Equity’

INTRODUCTION … Section I of this Article will provide a brief history of Law and Economics, beginning with its origins in the judicial philosophy of legal realism as espoused by Oliver Wendell Holmes. Section II will discuss the American Hospital case, where Judge Posner memorialized the Leubsdorf-Posner Formulation for granting preliminary injunctions. Section III examines […]

Daniel Sokol, ‘Rethinking the Efficiency of the Common Law’

ABSTRACT This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast […]

‘Contracts and Choice Theory, Part 2 – Why Autonomy Must Be Contract’s Ultimate Value’

“In our book The Choice Theory of Contracts, we developed a ‘liberal theory’ of contract law. In three forthcoming essays, we reply to critics and show how and why autonomy must be contract’s ultimate value. Our first essay – the focus of this OBLB post – focuses on the challenge from law-and-economics; the second essay […]

‘Contracts and Choice Theory, Part 1 – Choice Theory and the Economic Analysis of Contracts’

“In ‘Choice Theory and the Economic Analysis of Contracts’ I offer an economist’s reaction to Hanoch Dagan and Michael Heller’s important book, ‘The Choice Theory of Contracts’. In this post, I summarize the two main arguments from that short review essay. The first has to do with nomenclature. When referring to the economic analysis of […]

Miroslav Imbrišević, ‘The Strategic Foul and Contract Law: Efficient Breach in Sports?’

ABSTRACT The debate about the Strategic Foul has been rumbling on for several decades and it has predominantly been fought on moral grounds. The defenders claim that the rules of a game must be supplemented by the ‘ethos’ of the game, by its conventions or informal rules. Critics of the Strategic Foul argue that to […]

Eric Talley, ‘Automatorts: How Should Accident Law Adapt to Autonomous Vehicles? Lessons from Law and Economics’

ABSTRACT The introduction of autonomous vehicles (AVs) onto the nation’s motorways raises important questions about our legal system’s adaptability to novel risks and incentive problems presented by such technology. A significant part of the challenge comes in understanding how to navigate the transition period, as AVs interact routinely with conventional human actors. This paper extends […]

Uri Benoliel, ‘The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis’

ABSTRACT The impossibility doctrine – under which a contracting party has no duty to perform the agreement if performance thereof is rendered impossible – is a basic building block of US contract law. The prevailing law-and-economics analysis of this doctrine suggests that when contract performance becomes impossible, courts should assign the contractual risk of non-performance […]

Fagan and Khan, ‘Common law efficiency when joinder and class actions fail as aggregation devices’

ABSTRACT We develop a litigant-based model of rule selection where parties choose to litigate rules that are efficient between two parties, but inefficient as between a potential class or potentially joined litigants and a counter-party. Collective action problems lead to incomplete party formation, which generates continuous litigation of seemingly efficient rules. By accounting for externalities […]

‘Lunney’s Paradox: More Copyright May Lead to Less Creativity’

Glynn Lunney, Copyright’s Excess: Money and Music in the US Recording Industry (2018). The title of Glynn Lunney’s new book, Copyright’s Excess, presents a puzzle for those of us who have reflected on the nature and function of copyright law. Copyright is typically justified as a system of incentives. By giving authors (and by contract, […]

Lubna Hasan, ‘Fifty Years of Debate on the Hardin’s Tragedy of the Commons – A Reflection’

ABSTRACT This paper critically reviews Garrett Hardin’s ‘The Tragedy of the Commons’. Hardin’s thesis about the impossibility of collective action for achieving mutually beneficial outcomes in a group setting has divided scholarly community ever since its publication in 1968, while its most perennial object being the communal management of resources, which was banned on account […]