Law and Economics and Bix and Posner and Coase and Public Choice Theory and criticisms

I want to reiterate the point I made last class regarding what I hope you "get" out of the "modern" figures we are studying. First, my approach to jurisprudence is not just to focus on current scholars. I believe that there are deep and long traditions of jurisprudential thought that need to be learned before current work makes sense. In addition, once you learn the two signficant movements in jurisprudential theory (natural law and positivism), it is much easier for you to "place" contemporary scholars. Second, I defined "contemporary" scholars as those whose work was published since 1960. You can even tell, however, in the work of HLA Hart (Concept of Law, 1961) and Lon Fuller (The Morality of Law, 1964) that they are fighting battles that seem antiquated--e.g., Hart's refinement of Austin's 1832 work seems anything other than pressing today. Third, the list of these contemporary scholars of note includes, at a minimum, Hart, Fuller, Finnis, Kelsen, Dworkin and Rawls. Rawls is not strictly a jurisprude, focusing as he does on political philosophy, but his Theory of Justice (1971) is almost Platonic in its scope (i.e., like the Republic), and should be included for our purposes.

Fourth, I think you should be particularly concerned to answer three questions about each author: (1) What person/ideas is he reacting against or trying to restate? (2) What are his significant works, when were they written and what are the points of note in the book? (3) What are his catch phrases, words, concepts that seem to generate his thought and what do these concepts mean? Since people's lives evolve, be careful to see how concepts change, refine, evolve. This is most clear, for me, in the case of Ronald Dworkin where he speaks about principles supplementing rules (in disagreement with HLA Hart) in 1977 but, by the time of Law's Empire in 1986 he has developed a sophisticated theory of interpretation of the past tradition for present decision-making.

Law and Economics--An Introduction

I think the most fruitful way to spend some time on Law and Economics today will be to list a number of people or concepts that are part of the L & E vocabulary, and then have you spend time in class researching their definitions from Bix/Internet and then discussing them. Knowing the vocabulary and actors is the first step in gaining knowledge. So, my "list."

1. In what ways does Bix see utilitarianism contributing to the development of L & E? Whom do you associate with the theory of utilitarianism?

2. Who is Coase, what was he concerned about, and what is his theorem?

3. What is Public Choice Theory?

4. What does Bix say the contribution of Posner is to L & E?

5. What does "wealth maximization" mean?

6. On page 192, he quotes Posner as saying that the "basic assumption" of economics is "that people are [always] rational maximizers of their satisfaction." Does that mean anything to you?

7. What is a situation that is "Pareto optimal?"

8. How does Game Theory relate to L & E?

9. Professor Martha Nussbaum has a criticsm of L & E that has to do with its reductionist tendency. What is meant by that?

Then, after you come up with answers for these questions, I want you to ask yourself the following questions.

1. What don't you understand about L & E after you have read Bix's treatment?

2. Do you have a visceral reaction to it? A reflective reaction to it?

3. Notice all the Nobel Prize winners in Economics whose work somehow enters into the L & E movement. Does that make you want to learn more economics?

One "problem" I tend to have with L & E is either that its explanation is so broad that it loses all significance or that it is more of a "wish fulfillment" (to use Freud's term) than a reality. What I mean by the former is that if every decision is defined by its nature as a rational decision to maximize wealth, thus making economics the basis of all decisions, I could just as well substitute the word "breathing" for "economics" and argue, really, that the central and most important category of life is breathing. Thus, the "Longean" theory of law is that "breathing" is the fundamental category of life. Would anyone disagree? The more important question is, would anyone care?

What I mean by the latter is that it would be nice to think that decisions are a matter of rational choice (unless the meaning of rational is collapsed to mean "whatever I do"), but I think my experience of life is that determinism rather than freedom is the regnant category in most people's lives. But, we wish it isn't so. Therefore, we come up with all kinds of categories about how free we are, how rational we are, how much "choice" we have. It really isn't so. What do you think about that?

See you in class.