Post-Revolutionary Law And Economics:A Foreword to the Symposium

The Lanec (short for Law and Economics) movement of the 1970s hit the legal landscape like a nuclear device and permanently irradiated it. A couple of decades later, as we sift through the fallout, we are entitled to ask whether anything fundamental has changed. Every contributor to this Symposium seems to answer yes. Maybe they're like the book reviewer who believes deep in her heart that the book is worthless, but if she reveals it the editor will conclude that there is no point in printing her review. Let me put my own biases on the table. In general I applaud the greater precision that has come to legal studies through economics. But has Lanec changed the nature of the law? I'm not sure that it has lived up to the hopes or hypes of its original enthusiasts. Tags: Law and Economics (Lanec), Coase Theorem [pg757]** The Lanec (short for Law and Economics) movement of the 1970s hit the legal landscape like a nuclear device and permanently irradiated it. A couple of decades later, as we sift through the fallout, we are entitled to ask whether anything fundamental has changed. Every contributor to this Symposium seems to answer yes. Maybe they're like the book reviewer who believes deep in her heart that the book is worthless, but if she reveals it the editor will conclude that there is no point in printing her review. Contributor Leonard Jaffee is infuriated and outraged by the vision that Lanec provides,FN1 Judge Richard Posner patiently defends it,FN2 George Cohen is troubled by a [pg758] warp in the vision,FN3 and Linz AudainFN4 and Linda SchwartzsteinFN5 doggedly search for ways of linking Lanec to other recent jurisprudential movements in order to prove it guiltless by association. All of these writers seem to feel that Lanec makes a difference. Let me put my own biases on the table, if they're not apparent already.FN6 In general I applaud the greater precision that has come to legal studies through economics as well as through the other social sciences. Since many judicial decisions are proclaimed to be based on policy considerations, at minimum we owe judges sound empirical research and statistical clarity regarding social policies. Although I reserve judgment on whether, in any given case, a party's fate ought to be decided on the basis of general social policy (are judges in the social transfer-payment business?), or even whether broad policies can constrain judicial decision-making, FN7 at least one cannot seriously dispute the proposition that if policy considerations are to be assumed to be relevant to judicial decisions, they ought to be grounded upon hard data accurately presented. But has Lanec changed the nature of the law? I'm not sure that it has lived up to the hopes or hypes of its original enthusiasts. The initial hope—one that I once shared—is to take the subjectivity out of judicial decision-making.FN8 Lanec says this can be accomplished by a [pg759] simple compared quantification: comparing the values of the parties by counting dollars. If the defendant values the decision more than the plaintiff, that is a good Lanec-reason to award the decision to the defendant. On the other hand, if the defendant in a tort action, for example, was the cheapest accident avoider, that is a good Lanec-reason to award the decision to the plaintiff.FN9 If in a childcustody case the father is willing to spend more dollars on the child than the mother is willing to spend, award custody to the father. The invisible hand of the marketplace, with some help from its Lanec practitioners, thus controls the decisions in the courtroom, and not idiosyncratic judges. What Lanec promises us is predictability and a thriving economy. I. THE SIREN SONG OF QUANTIFICATION