On the Fitness between Law and Economics - Or Sunstein between Posner and Calabresi

Abstract

This article strengthens Calabresi’s call for a bilateral relationship between law and economics with two claims. The first claim is that the fitness analysis of Law and Economics (“concept-based fitness”) requires studying legal reasons and reasoning. This is a remarkable difference with the fitness analysis performed by the Economic Analysis of Law (“effect-based fitness”). Accordingly, Law and Economics and Economic Analysis of Law differ at the fitness stage already. The second claim is that Sunstein’s research on minimalism resonates well with Calabresi’s project although Sunstein has failed to acknowledge this in his book review. The article concludes with a discussion of how a minimalist approach contributes to a bilateral relationship between economics and law.

Keywords: law and economics, fitness, efficiency hypothesis, Calabresi, Sunstein

JEL Classification: A11, A12, A13, B49, K00, K10, K20, K30, K40