Book report: Economics and the Law

I ordered Economics and the Law by Mercuro and Medema because of its subtitle: From Posner to Post-Modernism. The book had a disappointing lack of discussion on postmodernism, but made up for it by being a very good summary of this important field of economics.

The book surveys the different schools in law and economics. I found this really useful because I have picked up bits and pieces here and there, but didn’t understand how they fit into law and economics scholarship. Now I have a better sense of what the different schools focus on as well as their key assumptions and insights.

Mercuro and Medema discuss five schools of thought in law and economics:

• Chicago school: Posner reduced legal justice to economic efficiency. Efficiency can both explain how law evolved and also how it should be written. Where legal rules are inefficient, there is an argument for ‘efficient breach’.
• Public choice theory: applies economic principles to non-market decision making, particular in the political and bureaucratic spheres. People and firms act through the market system but also through the legal and bureaucratic systems to maximise their welfare. Bureaucrats maximise their own welfare, which may not accord with social welfare.
• Institutional: economics and institutions are in a dialectical relationship. Efficiency doesn’t work as a criterion because the solution is not unique. Instead, law and economics are historically contingent and materially determined. Law creates and re-creates rights, which are (rightfully) contested.
• Neo-institutional: also assesses the impact of institutions, but considers people to be constrained rational utility maximisers. The goal of society is wealth maximisation.
• Critical legal studies: sees law as performative. This is a reaction against formalistic or doctrinal legal studies. This school rejects the Chicago school, and in particular rejects that it is value-neutral or apolitical. Because law is performative, it should be used to address social problems.

Helpfully, they also place ‘law and economics’ in the broader context of legal scholarship. The first chapter runs through hundreds of year of legal reasoning and explains the rise of ‘law and ___’ scholarship. When law was deprived of metaphysical foundations in God, religion, or Platonic ideals, scholars tried to understand why law was the way it was. They looked to other disciplines — economics, sociology, anthropology, etc. — to explan the legal system and to provide it legitimacy.

Two warnings:

• Because I know this area only a little, I cannot vouch for the book’s accuracy. Caveat lector.
• The quality of the writing is uneven. The book was clearly written by two different people. Some chapters flow really well, while others are informative but dense.

N.B.: I have the first edition (1997), but there is a second edition (2006).

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