This Essay explores the relationship between normative law and economics and legal theory. We claim that legal theory must account for law’s coerciveness, its normativity, and its institutional structure. Economic analyses that engage these features are an integral part of legal theory, rather than external observations about law from an economic perspective. These analyses, or economic analysis in law, play a crucial role in understanding the law and in developing legal policy arguments. After establishing its terminology, the Essay maps out three contributions of economic analysis in law: prescriptive recommendations in areas amenable to preference satisfaction as a normative criterion; analyzing efficiency as one aspect of a broader normative inquiry; and exposing feasibility constraints. Finally, the Essay turns to an exploration of possibilities for extending economic analysis in law beyond its comfort zone. It suggests that economic analysis might expand into areas where values other than preference satisfaction are or ought to be dominant considerations.
Dagan, Hanoch and Kreitner, Roy, Economic Analysis in Law (August 25, 2020). Forthcoming, Yale Journal on Regulation (2021).