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Abstract:
Rank ordering is a crude but economical method of conveying information that assists consumers (such as prospective law students) to make choices; hence the popularity of the law school rankings by U.S. News & World Report. However, the validity of USNWR's rankings are undermined by the arbitrary weights attached to the different factors on which the rankings are based. This paper explores a variety of alternatives, beginning with the mean LSAT score of the student body, and emphasizes that the design of a ranking system is relevant to the interest of the people whom the rankings are intended to guide. There is broad convergence of plausible systems of ranking law schools, but it is possible to improve on the USNWR rankings.

Abstract:
In this paper Judge Posner addresses the application of the antitrust laws to computer software and related "new economy" industries. He argues that antitrust doctrine is sufficiently supple to cope adequately with the legal and economic issues of antitrust policy presented by these industries but that the institutional framework of antitrust is inadequate; antitrust cases move too slowly and the antitrust community lacks the necessary technical expertise. He proposes several partial solutions to these problems.

Abstract:
Orwell's novel Nineteen Eighty-Four and Huxley's novel Brave New World have often been thought prophetic commentaries on economic, political, and social matters. I argue, with particular reference to the supposed applicability of these novels to issues of technology and privacy, that the novels are best understood as literary works of art, rather than as social science or commentary, and that when so viewed Orwell's novel in particular reflects a dissatisfaction with everyday life and a nostalgia for Romantic values.

Abstract:
The law of evidence is the body of rules that determines what, and how, information may be provided to a legal tribunal that must resolve a factual dispute. The importance of the accurate resolution of such disputes to an economically efficient system of law has been discussed at length, but the economic literature dealing with the rules themselves is scanty in relation to the scope and importance of evidence law. This article is the first comprehensive (though it is neither exhaustive nor definitive) economic analysis of that law. It is in three parts. The first part proposes and elaborates an economic model (actually two models, a search model and a cost minimization model) of evidence. The second part examines the basic structure and structural rules of the evidence-gathering process; it includes an economic comparison between the "inquisitorial" and "adversarial" systems of justice and an analysis of issues relating to burden of proof. The third part is an economic appraisal of salient provisions of the Federal Rules of Evidence, the most influential American codification of such rules; it also takes up some issues of evidentiary privilege and exclusion that the rules do not deal with explicitly.

Abstract:
Contract interpretation is an understudied topic in the economic analysis of contract law. This paper combines simple formal analysis of the tradeoffs involved in interpretation with applications to the principal doctrines of contract interpretation, including the four corners rule, mutual mistake, contra proferentum, and what I call the (informal but very important) rule of extrinsic nonevidence. Gap filling is distinguished, and the relativity of interpretive doctrine to the interpretive medium - jurors, arbitrators, and judges in different kinds of judicial system - is emphasized.

Abstract:
In this paper we raise questions concerning the widely accepted proposition that economic efficiency requires that copyright protection be limited in its duration (often shorter than the current term). We show that just as an absence of property rights in tangible property would lead to inefficiencies, so intangible works that fall into the public domain may be inefficiently used because of congestion externalities and impaired incentives to invest in maintaining and exploiting these works. Although a system of indefinite renewals could lead to perpetual copyrights or very long terms, this is unlikely. Our empirical analysis indicates that (1) fewer than 11 percent of the copyrights registered between 1883 and 1964 were renewed at the end of their 28-year term, even though the cost of renewal was small; (2) copyrights are subject to significant depreciation and have an expected or average life of only about 15 years; and (3) copyright registration and renewals are highly responsive to economic incentives for the shorter the expected life of a copyright and the higher the registration and renewal fees, the less likely are both registration and renewal. This in turn suggests that a system of modestly higher registration and renewal fees than at present, a relatively short initial term (20 years or so), and a right of indefinite renewal (possibly subject to an overall maximum term of protection of say 100 years) would cause a large number of copyrighted works to be returned to the public domain quite soon after they were created. A further benefit of indefinite renewal is that it would largely eliminate the rent-seeking problem that is created by the fact that owners (and users) of valuable copyrights that are soon to expire will expend real resources on trying to persuade (dissuade) Congress to extend the term.

intellectual property, property rights

Abstract:
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge's confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge's voting's is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).

judicial behavior, judicial votes, judicial ideology, public choice, attitudinal theory, law and politics

Abstract:
In September 1998, the Judicial Conference of the United States abandoned its latest attempt to regulate the timing of interviews and offers in the law clerk selection process. This paper surveys the further unraveling of the market since then, makes comparisons with other entry level professional labor markets, and evaluates some possibilities for reform.

Abstract:
The literature on signaling emphasizes signaling by business firms and also signaling by individuals by means of gifts or consumption. But it has rarely considered signaling by individuals by means of market behavior such as buying and selling. This paper seeks to fill this gap in the literature. It presents a model of such signaling, emphasizing the distinction between endowed and purchased status signaling; explains behaviors too readily dismissed as "irrational"; and reinterprets the results of a number of experiments in behavioral economics as artifacts of signaling rather than symptoms of cognitive deficiencies or moral concerns.

Abstract:
This paper analyzes the forces contributing to the worldwide long-run rise in obesity and the role of public interventions in affecting its continued growth. A growth in obesity in a population must result from the growth of calorie consumption outpacing the growth of physical activity. Yet in developed countries, obesity has grown with modest rises in calorie consumption and with a substantial increase in both exercise and dieting. We consider the economic incentives that give rise to a growth in obesity by stimulating intake of calories at the same time as discouraging the expending of calories on physical activity. We argue that technological change provides a natural interpretation of the long-run growth in obesity, that it predicts that the effect of income on obesity changes sign with economic development, and that it implies that the growth in obesity may be self-limiting.

Abstract:
This paper presents an economic model of the harmful error rule in criminal appeals. We test the implications of the model against legal doctrines governing reversible and nonreversible error of criminal convictions and on a sample of more than 1000 criminal defendants who appealed their convictions in the U.S. courts of appeals between 1996 and 1998. Among the more important theoretical and empirical findings of the paper are the following. Intentional prosecutor and judge errors are more likely to be found harmful and lead the appellate court to reverse the defendant's conviction than are inadvertent errors. Prosecutor errors are more likely to be forgiven than judge errors, in part because judge errors are likely to have greater influence on jurors. Errors are less likely to be harmful when defendants face a higher error-free probability of conviction. Finally, appellate courts are more likely to publish an opinion when they are reversing the lower court.


LSN - Criminal Law and Procedure, Empirical Studies, Litigation and Procedure

Abstract:
This paper presents an economic model of the harmful error rule in criminal appeals. We test the implications of the model against legal doctrines governing reversible and nonreversible error of criminal convictions and on a sample of more than 1000 criminal defendants who appealed their convictions in the U.S. courts of appeals between 1996 and 1998. Among the more important theoretical and empirical findings of the paper are the following. Intentional prosecutor and judge errors are more likely to be found harmful and lead the appellate court to reverse the defendant's conviction than are inadvertent errors. Prosecutor errors are more likely to be forgiven than judge errors, both because judge errors are likely to have greater influence on jurors and because a judge who has failed to correct a prosecutor's error (even an intentional one) has quite likely also failed to correct an offsetting defense error. Errors are less likely to be harmful when defendants face a higher error-free probability of conviction. Appellate courts are more likely to publish an opinion when they are reversing the lower court since the likelihood that the case presents a difficult issue on which precedent would be helpful is greater when there is disagreement among judges.

Abstract:
This review essay surveys the use of citations analysis in the economic analysis of law. The advantages and drawbacks of citations as data are discussed, the principal applications of citations analysis as a management tool and as a tool for testing hypotheses are canvassed, and the use of human capital and other economic models to provide a framework for the interpretation of citations and citation patterns is explained.

Abstract:
This paper shows that "one-sided" terms in standard contracts, which deny consumers a contractual benefit that seems efficient on average, may arise in competitive markets without informational problems (other than those of courts). A one-sided term might be an efficient response to situations in which courts cannot perfectly observe all the contingencies needed for an accurate implementation of a "balanced" contractual term when firms are more concerned about their reputation, and thus less inclined to behave opportunistically, than consumers are. We develop this explanation, discuss its positive and normative implications, and compare them to those of information-based explanations for one-sided terms.

contracts, standard form contracts, contracts of adhesion, reputation, opportunism, observability

Abstract:
Laws aimed at sexual harassment, nudity, and pornography are usually understood to be concerned primarily although not exclusively with "offensive" behavior rather than with more palpable or measurable harms. The precise nature of the offensiveness, however, is unclear. We shall argue that it is connected to status through the concept of signaling. Differences in the optimal sexual strategies of men and women translate into differences in actual or perceived status that in turn incite behaviors that create a demand for public or private regulation. Although our particular interest is status signaling, we discuss the phenomenon of status more broadly and explore a number of applications. In particular, we offer a fresh perspective on a social policy of growing importance--the provision of legal remedies against employers for sexual harassment in the workplace.

Abstract:
Chief Justice John Roberts, and others, have noticed that the lawyer in an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose the case. This paper provides rigorous statistical tests of that hypothesis and of the related hypothesis that the number of words per question asked, as distinct from just the number of questions asked, also predicts the outcome of the case. We explore the theoretical basis for these hypotheses. Our analysis casts light on competing theories of judicial behavior, which we call the 'legalistic' and the 'realistic.' In the former, the questioning of counsel is a search for truth; in the latter, it is a strategy for influencing colleagues. Our analysis helps to distinguish between these hypotheses by relating questioning practices to the individual Justice’s ideology and to the role of a 'swing' Justice.

Supreme Court, judicial behavior

Abstract:
The efficiency of common law rules is central to achieving efficient resource allocation in a market economy. While many theories suggest reasons why judge-made law should tend toward efficient rules, the question whether the common law actually does converge in commercial areas has remained empirically untested. We create a dataset of 465 state-court appellate decisions involving the application of the Economic Loss Rule in construction disputes and track the evolution of law in this area from 1970 to 2005. We find that over this period the law did not converge to any stable resting point and evolved differently in different states. We find that legal evolution is influenced by plaintiffs' claims, the relative economic power of the parties, and nonbinding federal precedent.

Evolution, Legal Rule, Convergence, Tort, Contract

Abstract:
The efficiency of common law rules is central to achieving efficient resource allocation in a market economy. While many theories suggest reasons why judge-made law should tend toward efficient rules, the question whether the common law actually does converge in commercial areas has remained empirically untested. We create a dataset of 465 state-court appellate decisions involving the application of the Economic Loss Rule in construction disputes and track the evolution of law in this area from 1970 to 2005. We find that over this period the law did not converge to any stable resting point and evolved differently in different states. We find that legal evolution is influenced by plaintiffs' claims, the relative economic power of the parties, and nonbinding federal precedent.

Abstract:
In the past, judges have often hired applicants for judicial clerkships as early as the beginning of the second year of law school for positions commencing approximately two years down the road. In the new hiring regime for federal judicial law clerks, by contrast, judges are exhorted to follow a set of start dates for considering and hiring applicants during the fall of the third year of law school. Using the same general methodology as we employed in a study of the market for federal judicial law clerks conducted in 1998-2000, we have broadly surveyed both federal appellate judges and law students about their experiences of the new market for law clerks. This paper analyzes our findings within the prevailing economic framework for studying markets with tendencies toward early hiring. Our data make clear that the movement of the clerkship market back to the third year of law school is highly valued by judges, but we also find that a strong majority of the judges responding to our surveys has concluded that nonadherence to the specified start dates is very substantial -- a conclusion we are able to corroborate with specific quantitative data from both judge and student surveys. The consistent experience of a wide range of other markets suggests that such nonadherence in the law clerk market will lead to either a reversion to very early hiring or the use of a centralized matching system such as that used for medical residencies. We suggest, however, potential avenues by which the clerkship market could stabilize at something like its present pattern of mixed adherence and nonadherence, thereby avoiding the complete abandonment of the current system.

Abstract:
In the past, judges have often hired applicants for judicial clerkships as early as the beginning of the second year of law school, for positions commencing approximately two years down the road. In the new hiring regime for federal judicial law clerks, by contrast, judges are exhorted to follow a set of start dates for considering and hiring applicants during the fall of the third year of law school. Using the same general methodology as we employed in a study of the market for federal judicial law clerks conducted in 1998-2000, we have broadly surveyed both federal appellate judges and law students about their experiences of the new market for law clerks. This Article analyzes our findings within the prevailing economic framework for studying markets with tendencies toward early hiring - a framework we both draw upon and modify in the course of our analysis. Our data make clear that the movement of the clerkship market back to the third year of law school is highly valued by judges, but we also find that a strong majority of the judges responding to our surveys has concluded that non-adherence to the specified start dates is very substantial - a conclusion we are able to corroborate with specific quantitative data from both judge and student surveys. The consistent experience of a wide range of other markets suggests that such non-adherence in the law clerk market will lead to either a reversion to very early hiring or the use of a centralized matching system such as that used for medical residencies. We suggest, however, potential avenues by which the clerkship market could stabilize at something like its present pattern of mixed adherence and non-adherence, thereby avoiding the complete abandonment of the current system.

Judicial clerkships, judges

Abstract:
No abstract available.

Law Economics, Rules and Discretion, Judge-Made Rule

Abstract:
This paper develops a simple economic model of the demand for and supply of presidential pardons (including commutations and other clemency grants). The model assumes that the number of pardon applications depends on the expected benefits and costs of applying and the number of pardons depends on the president's calculation of his net political benefits from approving an application. This yields an equilibrium number of applications and pardons that can be estimated from time series data over the 1900 to 2005 period. Overall, the regression results support the model. For example, we find that the likelihood of receiving a pardon has a positive effect on applications; and that increases in the number of persons paroled (a substitute for a pardon) and in the time from conviction to pardon (which lowers the benefits of a pardon) reduces the number of applications. We also observe a positive time trend in applications that corresponds to the increase in the number of federal prisoners (and persons released from prison) that make up the pool of potential pardon applicants. With respect to the number of pardons, we find that democratic presidents (who we expect to be less tough on crime) are more likely to grant pardons; that the crime rate has a negative impact on pardons; and that the number of pardons increased during Prohibition and during wartime and postwar periods.

remissions, perogative

Abstract:
A major challenge to social theory is to explain the pattern of government intervention in the market - what we may call "economic regulation." Properly defined, the term refers to taxes and subsidies of all sorts as well as to explicit legislative and administrative controls over rates, entry, and other facets of economic activity. Two main theories of economic regulation have been proposed. One is the "public interest" theory, bequeathed by a previous generation of economists to the present generation of lawyers. This theory holds that regulation is supplied in response to the demand of the public for the correction of inefficient or inequitable market practices. It has a number of deficiencies that we shall discuss. The second theory is the "capture" theory - a poor term but one that will do for now. Espoused by an odd mixture of welfare state liberals, Marxists, and free-market economists, this theory holds that regulation is supplied in response to the demands of interest groups struggling among themselves to maximize the incomes of their members. There are crucial differences among the capture theorists. I will argue that the economists' version of the "capture" theory is the most promising but shall also point out the significant weaknesses in both the theory and the empirical research that is alleged to support it.

Institutional subscribers to the NBER working paper series, and resident of developing countries may download this paper without additional charge at www.nber.org

Abstract:
This paper analyzes the factors contributing to the worldwide long-run rise in obesity and the effects of public interventions on its continued growth. The growth of obesity in a population results from an increase in calorie consumption relative to physical activity. Yet in developed countries, obesity has grown with modest rises in calorie consumption and with a substantial increase in both dieting and recreational exercise. We consider the economic incentives that give rise to a growth in obesity by stimulating intake of calories while discouraging the expending of calories on physical activity. We argue that technological change provides a natural interpretation of the long-run growth in obesity despite a rise in dieting and exercise, that it predicts that the effect of income on obesity falls with economic development, and that it implies that the growth in obesity may be self-limiting.

Abstract:
When an industry is monopolized, price rises above and output falls below the competitive level. Those who continue to buy the product at the higher price suffer a loss, but this loss is exactly offset by the additional revenue that the monopolist obtains by charging the higher price. Other consumers, who are deflected by the higher price to substitute goods, suffer a loss, that is not offset by gains to the monopolist. This is the "deadweight loss" from monopoly, and in conventional analysis the only social cost of monopoly. The loss suffered by those who continue to buy the product at the higher cost is regarded merely as a transfer from consumers to owners of the monopoly seller and has not previously been factored into the social costs of monopoly. However, the existence of an opportunity to obtain monopoly profits will attract resources into efforts to obtain monopolies, and the opportunity costs of those resources are social costs of monopoly, too. Although the tendency of monopoly rents to be transformed into costs is no longer a novel insight, its implications both for the measurement of the aggregate social costs of monopoly and for a variety of other important issues relating to monopoly and public regulation (including tax policy) continue to be ignored. The present paper is an effort to rectify this neglect. Part I introduces the material. Part II presents a simple model of the social costs of monopoly, conceived as the sum of the deadweight loss and the additional loss resulting from the competition to become a monopolist. Part III uses the model to estimate the social costs of monopoly in the United States, and the social benefits of antitrust enforcement. Part IV explores the implications of the analysis for a variety of issues relating to monopoly and public regulation, such as public policy toward price discrimination and the choice between income and excise taxation.

Institutional subscribers to the NBER working paper series, and resident of developing countries may download this paper without additional charge at www.nber.org

Abstract:
Although the not-for-profit sector contributes greatly to aggregate output in many industries, there is little explicit analysis of the consequences of applying antitrust policy in this sector. This paper argues that the same incentives to collude exist in the non-profit sector as in the for-profit sector and that therefore, since competition is socially valuable regardless of the particular objectives of producers, the fact that antitrust law does not distinguish between the two sectors is efficient. The similarity in incentives derives from the fact that altruistic firms benefit from exploiting market power even when they would price below cost without regard to competition. Although the legal regulations governing the nonprofit sector limit the degree to which profits can be distributed, and therefore seek to reduce rents in a similar manner to antitrust laws, this nondistribution constraint does not obviate the need for antitrust in that sector. The argument for uniform antitrust doctrine in the two sectors extends to the exemptions from antitrust as well. In particular, patents (lawful monopolies intended to create incentives for innovation) stimulate innovation in the nonprofit sector only when they enable market power to be exploited, just as in the for-profit sector, and so the patent exemption from antitrust should be as broad in the nonprofit sector.

Abstract:
An important question in the economic study of enforcement is the appropriate, and the actual, division of responsibilities between public and private enforcers. This question has been brought into sharp focus recently by an article in which Gary Becker and George Stigler advocate the privatization of law enforcement. In the present article, we explore the idea that the area in which private enforcement is in fact clearly preferable to public enforcement on efficiency grounds is more restricted than Becker and Stigler believe; perhaps the existing division of enforcement between the public and private sectors approximates the optimal division. Part I develops an economic model of competitive, profit-maximizing private enforcement. The model predicts the level of enforcement and the number of offenses that would occur in a world of exclusively private enforcement. Part II refines the model to account for the presence of monopoly in the private enforcement industry, different assignments of property rights in legal claims, the effect of taxing private enforcers, nonmonetary penalties, and legal errors - elements ignored in the initial development of the model in Part I. Part III contrasts our model with other economic approaches to the enforcement question. Part IV presents a number of positive implications of the model, relating to the choice between public and private enforcement of criminal versus civil laws, the assignment of exclusive rights to the victims of offenses, the budgets of public agencies, the discretionary nonenforcement of the law, and the legal treatment of blackmail and bribery. The positive implications of the model appear to be consistent with observations of the real world, although the findings in Part IV must be regarded as highly tentative. An appendix discusses the economics of rewards - an important method of compensating private enforcers.

Institutional subscribers to the NBER working paper series, and resident of developing countries may download this paper without additional charge at www.nber.org

Abstract:
We believe that at a deeper level the independent judiciary is not only consistent with, but essential to, the interest-group theory of government. Part I of this paper explains our theory of the independent judiciary. Part II discusses several implications of the theory, relating to administrative regulation, the form of interest-group legislation, the tenure of judges, and constitutional adjudication. The appendix to this paper presents an empirical analysis of judicial independence using data on Acts of Congress that have been held unconstitutional by the Supreme Court.

Abstract:
The law and economics movement is the principal interdisciplinary field of legal studies. This paper traces the history of the movement and explains its basic principles, contrasts the version of the movement that predominates in the United States with the version that prevails in Europe, noting the greater emphasis of the former on substantive doctrine and of the latter on rule of law considerations, and emphasizes the importance of the movement for legal and economic reform in developing nations.

Abstract:
Despite the conceptual differences between for-profit and non-profit firms stressed in conventional economic analyses of the non-profit sector, U.S. antitrust law generally does not distinguish between these two organizational forms. This paper argues that the same incentives to restrain trade exist in the non-profit sector as in the for-profit sector. Altruistic firms benefit from exploiting market power, just as non-altruistic ones do, even when they would price below cost without regard to competition. Therefore, promoting competition is socially valuable regardless of the particular objectives of producers, and the fact that antitrust law does not distinguish between the two sectors is efficient.

Abstract:
Two recent failures of the United States intelligence system have led to the creation of high-level investigative commissions. The failure to prevent the terrorist attacks of 9/11 prompted the creation of the 9/11 Commission, and the mistaken belief that Saddam Hussein had retained weapons of mass destruction prompted the creation of the Weapons of Mass Destruction Commission. We use insights from organizational economics to analyze the principal organizational issues raised by these commissions.

Organizational economics, intelligence reform, war on terrorism

Abstract:
The world-wide and ongoing rise in obesity has generated enormous popular interest and policy concern in developing countries, where it is rapidly becoming the major public health problem facing such nations. As a consequence, there has been a rapidly growing field of economic analysis of the causes and consequences of this phenomenon. This paper discusses some of the central themes of this decade long research program, aiming at synthesizing the different strands of the literature, and to point to future research that seems particularly productive.

Abstract:
The use of precedents to create rules of legal obligation has, to our knowledge, received little theoretical or empirical analysis. This paper presents and tests empirically an economic approach to legal precedent that is derived mainly from the analysis of capital formation and investment. We treat the body of legal precedents created by judicial decisions in prior periods as a capital stock that yields a flow of information services which depreciates over time as new conditions arise that were not foreseen by the framers of the existing precedents. New (and replacement) capital is created by investment in the production of precedents.

Abstract:
A classic example of external benefits is the rescue of the person or property of strangers in high transaction cost settings. To illustrate, A sees a flowerpot about to fall on B's (a stranger's) head; if he shouts, B will be saved. A thus has in his power to confer a considerable benefit on B. The standard economic reaction to a situation in which there are substantial potential external benefits and high transaction costs is to propose legal intervention. In the example given, this would mean either giving A a right to a reward or punishing A if he fails to save B. Either method, we show, is costly and may result in misallocative effects. These objections to using the law to internalize the external benefits of rescue would be much less imposing were it not for altruism, a factor ignored in most discussion of externalities. Altruism may be an inexpensive substitute for costly legal methods of internalizing external benefits, though this depends on the degree of altruism, the costs of rescuee, and the benefits to the rescuee. Although the general legal rule is not to reward the rescuer (nor to impose liability), the law recognizes the fragility of altruism and entitles the rescuer to a reward in certain instances. These include rewards to professional rescuers on land (normally a physician) and to rescuers at sea. In both instances the costs of rescue are likely to be sufficiently high to discourage rescue unless the rescuer anticipates compensation.

Abstract:
This paper examines the use of citations analysis as an empirical tool for understanding aspects of the legal system and for improving the performance of the system. Emphasis is laid on the use of such analysis as a means to evaluate courts and judges (and therefore as a judicial-management tool), to test hypotheses about judicial behavior, and to evaluate and improve legal scholarship. It is argued that economic models, particularly of reputation and of human capital, can frame and guide the use of citations analysis in law.

Abstract:
This paper examines the use of citations analysis as an empirical tool for understanding aspects of the legal system and for improving the performance of the system. Emphasis is laid on the use of such analysis as a means to evaluate courts and judges (and therefore as a judicial-management tool), to test hypotheses about judicial behavior, and to evaluate and improve legal scholarship. It is argued that economic models, particularly of reputation and of human capital, can frame and guide the use of citations analysis in law.

Abstract:
This paper examines the question whether adjudication can be viewed as a private good, i.e., one whose optimal level will be generated in a free market. Part I focuses on private courts, noting their limitations as institutions for dispute resolution and rule creation but also stressing the important role that the private court, in its various manifestations, has played both historically and today. Part II discusses a recent literature which has argued that the rules generated in the public court system, in areas of the law where the parties to litigation are private individuals or firms and the rules of law are judge-made, are the efficient products of purely private inputs. Our analysis suggests that this literature has overstated the tendency of a common law system to produce efficient rules, although areas can be identified where such a tendency can indeed be predicted on economic grounds. Viewed as a contribution to the emergent literature on the positive economic theory of law, our finding that the public courts do not automatically generate efficient rules is disappointing, since it leaves unexplained the mechanisms by which such rules emerge as they seem to have done in a number of the areas of Anglo-American judge-made law. However, our other major finding, that the practices and law governing private adjudication appear to be strongly influenced by economic considerations and explicable in economic terms, is evidence that economic theory has a major role to play in explaining fundamental features of the legal system.

Abstract:
No abstract is available for this paper.

Abstract:
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).

Rational, Judicial, Behavior, Statistical, Supreme Court, Landes, Posner

Abstract:
In this comment on the conference papers, Judge Posner argues for a pragmatic construal and defense of cost-benefit analysis, demonstrating the benefit of such analysis; responding to specific criticisms of, and suggested changes in, the analysis; and emphasizing that the value of such analysis as an evaluative and decision tool for social and economic policy making does not depend on the resolution of philosophical problems.

Abstract:
In this extensively revised second edition of a book first published in 1976, Posner offers a compact but thorough and extensively documented analysis of U.S. antitrust law, employing the economic perspective that has become dominant over the quarter century since it was advocated in the first edition. The history of U.S. antitrust enforcement is sketched, the major cases are dissected, the major areas of substantive law are treated in depth (collusion both express and tacit, mergers, price discrimination, information exchanges and vertical restrictions, and exclusionary practices), and problems with the administration and enforcement of the antitrust laws are considered at length and solutions proposed.

Abstract:
This paper provides an empirical test of the claim that the U.S. Court of Appeals for the Ninth Circuit has too many judges to be able to do a good job. Reversals (especially summary reversals) by the Supreme Court, and citations, are used as proxies for quality of judicial output. The overall conclusion is that (1) adding judgeships tends to reduce the quality of a court's output and (2) the Ninth Circuit's uniquely high rate of being summarily reversed by the Supreme Court (a) is probably not a statistical fluke and (b) may not be a product simply of that circuit's large number of judges.

Abstract:
Two central puzzles about social norms are how they are enforced and how they are created or modified. The sanctions for the violation of a norm can be categorized as automatic, guilt, shame, informational, bilateral-costly, and multilateral-costly. The choice of sanction is related to problems in creating and modifying norms. We use our analysis of the creation, modification, and enforcement of norms to analyze the scope of feasible government action either to promote desirable norms or to repress undesirable ones. We conclude that the difficulty of predicting the effect of such action limits its feasible scope.