Inoperable Rules: Difficulties with the Abstract Analysis of Law
Posted: 26 Feb 2009 Last revised: 22 Jul 2009
Date Written: February 25, 2009
One significant but commonly unrecognized problem with the social-scientific analysis of law is that it often suggests rules that simply cannot be put into practice. This does not have to be so; economic analysis, for instance, can enlighten legal doctrine in helpful and practical ways. But too often, high-level deductive analyses of law seem to forget that judges have to decide real cases, and the analyses ignore the practical operational limits of courts and of litigation. Distinctions and conclusions that look sensible or even compelling in the abstract often fail to translate to real cases.
My goal in pointing out this trend is not only to criticize several significant law-and-economics analyses but also to provide a map of potential pitfalls to aid similar kinds of analysis in the future.
There are several reasons that the normative conclusions of law-and-economics scholars are often inoperable. Perhaps the most significant arise from limits on information to which courts or private parties have access -- limits to which formal analysis is often (as a positive matter) insensitive, even though it need not be. Thus, for instance, as others have persuasively shown, the "theory of efficient breach" in contract law fails because it assumes that a promisor has full access to information about the value of contractual performance to a promisee. Other reasons for a disconnect between analysis and implementation are that social-scientific scholarship often suggests rules that require intractable ex post classification or framing and rules that would demand unrealistically complex analysis from courts.
Keywords: law and economics, social science, formal analysis, administrability, operability
JEL Classification: K00, K10
Suggested Citation: Suggested Citation