Tastes, Values, and the Future of Law and Economics

Abstract

This is a Review of Guido Calabresi’s fascinating and thought-provoking new book, The Future of Law and Economics (presented in a book symposium held at the Hebrew University of Jerusalem in December 2016). The Review proposes to break the notion of commodification, as used by Calabresi, into two distinct notions: monetization and commodification. It then focuses on the distinction between positive and normative economic analysis, and argues that even the supposedly positive parts of the book’s analysis are actually normative (and that in this regard Calabresi’s analysis is no different from the traditional economic analysis that he criticizes). Finally, the Review critically analyzes the proposal to integrate non-consequentialist, non-welfarist, and non-utilitarian moral concerns into economic analysis by treating them as “preferences.” It argues that within both normative and positive analyses, these concerns should be treated as what they are, namely normative judgments. The Review concludes by pointing to a possible, alternative way of integrating such moral concerns into cost-benefit analysis.

Keywords: law and economics, economic analysis of law, commodification, monetization, merit goods, consequentialism, welfarism, denotological constraints, cost-benefit analysis

JEL Classification: A11, A12, A13, D02, D61, D62, D63, D64, I00, K00, K13, Y30