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European Journal of Law and Economics

, Volume 48, Issue 1, pp 89–111 | Cite as

Does law and economics help decide cases?

  • Conor ClarkeEmail author
  • Alex Kozinski
Article

Abstract

Our answer is “less often than you might think.” We qualify and defend this answer in several steps. First, we offer some suggestive evidence that major scholarly contributions in law and economics have had relatively more influence with academics than with judges. For example, ranking articles on the basis of judicial citations rather than academic citations produces interesting results: Judges cite Ronald Coase’s “The Problem of Social Cost,” by far the most cited paper in the legal academy, much less frequently than doctrinal papers that have received relatively little attention from scholars. Second, we argue that some common features of law and economics scholarship are unappealing to judges. The broadest form of explanatory law and economics—like the hypothesis that the common law has tended to produce efficient rules—is often of little use to judges, who require reasons for making or justifying current decisions. Prescriptive law and economics, meanwhile—like various arguments that the legal system should produce efficient rules—often proceeds from ideological premises that judges don’t share, or fails to account for the institutional constraints under which judges operate. In short, much law and economics scholarship is insufficiently doctrinal to appeal to the average judge. These features of law and economics scholarship don’t prevent judges from using economics all the time. After all, economics is a basic social science, and judges encounter economic questions with some regularity. But, even here, we find little evidence that today’s judges are making greater use of concepts like “efficiency” and “incentives” than those of the past. Throughout this essay, we comment on Guido Calabresi’s “The Future of Law and Economics” (2016) and Richard Posner’s “Divergent Paths: The Academy and the Judiciary” (2016).

Keywords

Judges Judicial Behavior Law and Economics Citations Legal Scholarship 

JEL Classification

K00 K10 K40 

Notes

Acknowledgements

The views expressed in this paper are the authors’ only and do not necessarily reflect the views of the Department of Justice or the Office of Legal Counsel. For helpful comments and feedback, we thank Guido Calabresi, Wendy Gordon, Louis Kaplow, Grace Kim, Zachary Liscow, Richard Posner, three anonymous reviewers, the editors of the European Journal of Law and Economics, and participants in the Boston University Conference on Guido Calabresi’s The Future of Law and Economics. We also thank Sai for generous and unflagging assistance with the empirical aspects of this paper, Norvik Asarian for research assistance, and Westlaw and Courtlistener (a part of the Free Law Project) for permitting the access necessary to conduct this research.

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Copyright information

© Springer Science+Business Media, LLC, part of Springer Nature 2019

Authors and Affiliations

  1. 1.Attorney-Adviser, Office of Legal CounselUnited States Department of JusticeWashingtonUSA
  2. 2.Judge, United States Court of Appeals for the Ninth Circuit (retired)CaliforniaUSA

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