Some Thoughts on Economic Reasoning in Appellate Courts and Legal Scholarship
University of Arizona - James E. Rogers College of Law
September 30, 2012
Klaus Mathis (ed.), Law and Economics in Europe. Foundations and Applications, Dordrecht/Heidelberg/London/New York: Springer, Forthcoming
Economists find it worthwhile to study the effects of law, and to offer explanations or recommendations in light of such studies. Lawyers also contribute to this same enterprise, i.e., using the intellectual tools typically developed and used by economists. A lawyer may do this because it has intrinsic (intellectual) value or because it is relevant, by which I mean that it is proper from the perspective of legal methodology (and, if applicable, his or her’s own preferences). In this chapter, examples from Norway of such relevance are offered based on personal experienced as a judge and as a legal scholar. First, the intrinsic ingredient of economics in law is suggested using three appellate court cases that I co-decided for illustrative purposes. Secondly, three Norwegian contributions to legal scholarship are discussed to shed light on a demarcation problem that may arise more often in Europe than many other places and also to suggest more could and should be done to fuse economic analysis of law and doctrinalism. Thirdly, and relatedly, three principles for bridging economic reason and legal argument are highlighted. Although the main goal is to reflect normatively and exploratory on professional norms from the standpoint of someone who has internalized these norms, the chapter simultaneously reports “field data” contradicting Posner’s claim that economic analysis of law is congenial to American judges only (Posner 1996 p. 42) and Eidenmüller’s claim that it is a prerogative for the Legislator to take economic analysis of law into account (Eidenmüller 1995 p. 490).
Number of Pages in PDF File: 34
Keywords: Balancing Rules, Central Banks, Contract Modification/Revision, Doctrinalism/Legal Dogmatics, Economic Reasoning, Environmental Liability, Fushion of Doctrinalism/Legal Dogmatics and Economic Analysis of Law, Liability Rules, Nuisance, Property Rules, Ratio Decidendi, Rechtswissenschaft
JEL Classification: K00, K10, K20, K30, K40Accepted Paper Series
Date posted: February 7, 2013
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