About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


46 U. Chi. L. Rev. 281 (1978-1979)
Some Uses and Abuses of Economics in Law

handle is hein.journals/uclr46 and id is 289 raw text is: The University of Chicago Law Review VOLUME 46 NUMBER 2 WINTER 1979 Some Uses and Abuses of Economics in Law Richard A. Posnert The law-and-economics movement continues to grow, con- tinues to be a focus of controversy, and continues-or so it seems to me-to be widely misunderstood. Perhaps, therefore, another arti- cle seeking to explain the movement is warranted.' In addition to serving as an introduction to (but by no means a comprehensive review of) a large and rapidly expanding scholarly literature, this article will discuss some abuses of economics in law. Abuse, of course, is a word of at least two meanings, only one of which is misuse. I confess to being more conscious of the abuse heaped upon the law-and-economics movement than of the occasional mis- use of economics in law, but I shall give examples of both types of abuse after first discussing what seem to me to be some fruitful uses. I. A BRIEF HISTORY OF THE ECONOMIC ANALYSIS OF LAW The economic analysis of law has two branches, both of which date from the emergence of economics as a distinct field of scholar- ship in the eighteenth century. One branch, which dates back at least to Adam Smith, is the economic analysis of laws regulating explicit markets-laws regulating the economic system in the conventional sense. The other branch, which can be said to have t Lee and Brena Freeman Professor of Law, The University of Chicago. This article is an expanded version of a talk given to the Section on Jurisprudence of the American Associa- tion of Law Schools on January 5, 1979. 1 am indebted to Paul Bator; Kenneth Dam, Richard Epstein, Frank Michelman, and George Stigler for their helpful comments on a previous draft. ' See Klevorick, Law and Economic Theory: An Economist's View, 65-2 Am. EcoN. REv. 237 (1975); Posner, The Economic Approach to Law, 53 TEx. L. REv. 757 (1975).