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Homework answers / question archive / Requirement - 3pages - You are then to compare and contrast your paper against the assigned peer’s paper

Requirement - 3pages - You are then to compare and contrast your paper against the assigned peer’s paper


Requirement - 3pages - You are then to compare and contrast your paper against the assigned peer’s paper. - This assignment does NOT require you to do any external research or put in citations, but you are encouraged to quote from the reviewed paper USING QUOTE MARKS! - - Do not copy the centense. Running head: DISCUSSION OF EFFICIENT BREACH IN YOUR HOME LEGAL SYSTEM The Breach: A Discussion of Efficient Breach in Your Home Legal System Tang 1 DISCUSSION OF EFFICIENT BREACH IN YOUR HOME LEGAL SYSTEM 2 Discussion of Efficient Breach in your Home Legal System An efficient breach is simply a voluntary breach of contract, as defined in Law and Economics Legal theory (Klass, 2016). The beneficiary is entitled to damage compensations by the party that wants to withdraw from the contract. For an efficient breach consideration to be compensated, the following economic considerations must be factored in: 1. Actual compensatory damage is an amount that is necessary to leave a promise indifferent. It includes a total compensation package. For this compensation to be accepted, you will need to prove substantial cost to obtain the compensation (Klass, 2016). Experts also need to be given time to determine the promisee’s loss worth. 2. Determination of market price and damage worth. Both the market and the contact worth are determined. The damages are assessed for their homogeneous phenomenon. If a couple of random errors are attained during the analysis, the promise will be undercompensated. If minimal, he/she will be overcompensated. A couple of significant class cases; proposes that a couple of cases associated with those who bought properties be always under-compensated (Stewart, 2018). In a legal setting, it is evident that there has always been a tendency to condemn its violation. This act makes the subject unobjectionable since there has always been an undesirable international law violations case; most of them usually are from an economic standpoint (Klass, 2016). A lot of legal considerations need to be implemented, from facilitation of non-compliance to the internalizing of costs of violations. An instance is breaching of an international obligation DISCUSSION OF EFFICIENT BREACH IN YOUR HOME LEGAL SYSTEM 3 act usually attracts the evolution of underlying laws that most of the time are generally substantive. The ethical issue involving an efficient breach should be handled with prejudice and respect. This is because contracts are usually not meant to last forever due to many unavoidable circumstances. It is, however, considered unethical to breach the agreement. One may get involved in an efficient breach at will vs. contract, whereby it is associated with an employer and an employee either with notice or without (Stewart, 2018). It requires advance notice in writing and should be according to the subject agreements. Once the tender is submitted to the employer, an event leading to him/ her not being paid without reasons then dully goes against the contract. The compensation provided by an employer is always in the form of money. In such a case, if the promise is worth receiving her compensation, the employer is highly unethical as he/ she should commit to the intended skills. An ethical dilemma is usually avoided through discussing contract terms and conditions before signing them (Klass, 2016). Making concessions with regards to the contract usually offers grounds for making both parties comfortable with the agreement. Discussion of Examples of Economic Breach from your Home Legal System Economic Legal system breach usually requires a court system to reach a specific decision. A justice system is supposed to cater for the utmost provision of justice through the theory of incentive created by the Legal process (Klass, 2016). An example of a case involves a Los Angeles manufacturer. He faces a large liability case for dumping hazardous waste in a region back in 1965. The manufacturer files a claim with its London Insurer agency that had provided them their insurance policy. The Insurer denies the insurance policy to have supposed to cover the loss. The manufacturer company is faced with DISCUSSION OF EFFICIENT BREACH IN YOUR HOME LEGAL SYSTEM 4 deciding whether to file the suing case in London or Los Angeles. In London, the loser pays for the winner's legal costs in a suit, while back in Los Angeles, each party pays for their legal costs. They are faced with the decision on how the place to file the case will be affected by allocating the costs of the permitted activity. The Legal results are based on the facts needed to consider before engaging in an efficient breach of the case. The factors are; considering if any of the rules regarding hazardous wastes favor the defendants. In trying to analyze this, they would need to consider the alternative incentives available at the expense of the legal costs. Usually, the goal of the Legal and process is minimizing the social costs (Stewart, 2018). Evaluating this helps provide a helpful guide in the analysis of compensatory cases that might arise. Economics of a legal procedure involves economic analysis of examinations of the benefits package. As a manufacturer, you are bound to be accused falsely by society due to wealth status; therefore, measuring all errors to a standard of perfection is necessary. With courts constantly having been fed false information, they usually make a mistake when handling substantial Law. The efficient breach theory helps explain the Law’s expectation of a damage preference for a contract breach. Judicial Laws usually govern these contractual agreements. Following its ethical procedures is essential as long as liquidated damages are experienced from the contract. Efficient breaches maximize the gains from a trade transaction; this is because the more efficiently the exchange is designed, the higher the compensatory income in the case of a division (Klass, 2016). DISCUSSION OF EFFICIENT BREACH IN YOUR HOME LEGAL SYSTEM References Klass, G., Letsas, G., & Saprai, P. (2016). Philosophical foundations of contract law. Oxford: Oxford University Press. Stewart, A. (2018). Stewart's guide to employment law. The Federation Press. 5 Running head: EFFICIENT BREACH 1 Efficient Breach EFFICIENT BREACH 2 Efficient Breach Efficient Breach Theory An efficient breach occurs when the terms of the contract by one of the parties are interfered with voluntarily and damages that arise are paid because the completion of the agreement or contact makes insignificant economic gain. In this scenario, it is the breaching party that considers the economic gain or loss that is involved. The argument here is simple, breach is efficient when the costs of the breach outweigh its benefits, and the breaching party can afford to pay damages, including any applicable judgment or settlement fees (Morrison, 2020). The damages contemplated are equivalent to the amount sufficient to compensate for the harm caused to the non-breaching party. However, the non-breaching party has the liberty to offer extra payment as an incentive for the other party not to breach efficiently. In this case, the breaching party may choose to accept the new offer or not, the non-breaching party is not obligated to offer such incentives unless stated otherwise in the contract. This side payment forestalls that possible breach if the harm to the non-breaching party exceeds the benefit to the potential breaching party (Maria, Stefania, Francesco & Ariel, 2016). Debate abounds if this theory gains wide acceptance to encourage a breach of contract and whether measures, including penalties and specific performance clauses, should be put in place. However, Courts hold in favor of efficient breach because such enforcement is akin to forcing a party to comply with a contract even when breach would be efficient. Efficient Breach in South Korea’s Legal System This is handled in the same way and within the framework of other disputes, which are dealt with through civil actions heard by the courts or alternative dispute resolution, which has EFFICIENT BREACH 3 recently gained popularity. It is noteworthy that Korean law makes it mandatory for parties to contracts to make specific damages and penalties. This means that any breach is already premeditated and a quantum for it included in the contract either as liquidated damages or punitive penalties. The non-breaching party is entitled to an agreed compensation plan which is often agreed in advance also known as liquidated damages. On the other hand, in punitive penalties are only considered in case of non-performance (Bigoni, 2017). Liquidated damages amount can be reduced by a court of law if deemed unduly excessive. Still, punitive damages cannot be adjusted and must be paid as provided for in the contract. Korean law requires that efficient breach be contemplated beforehand and included in the contract, and appropriate amounts are stated in the agreement (Park, H. N., 2017). In other words, it is not open-ended as the case may be in other jurisdictions. The Supreme Court of Korea established a precedent so as to invoke Article 103 of the Civil Act whose main role is to negotiate on the punitive penalty amounts, if the current amount is considered to be against the social orders and good morals, in some cases the penalties can be considered null and void (Park, H. N., 2017). Economic Considerations of Efficient Breaches The question here is whether efficient breaches are justifiable, and my view is that they are central to the performance of any contract and cannot be ignored. There are several events whose occurrences may never be predicted; it is possible the consequences of such events may affect a certain contract (Kilvington, 2018). Therefore, having a provision for efficient breach is a relief. If, for instance, an agreement between a manufacturer and a retailer is such that the former would sell a product at $200 (which costs $180 to make), and the retailer would then EFFICIENT BREACH 4 make a $20 profit from having the product on their stock list. Suppose the manufacturer finds another buyer for $265 for the same product and assuming the product will be unavailable upon this one being sold. In that case, the manufacturer may breach the contract with the retailer and compensate them (Hadchity, 2020). They would sell to the second buyer and profit from $85 instead of $20, which is $65 more than if they had sold to the first buyer. The manufacturer can compensate the first buyer for the loss of $20 they would have made in profit and remain $55. It ensures that all parties involved in contract don’t suffer any damages that may arise (Klass & Klass, 2017). This is the economic sense of efficient breach. Therefore, in my view, it is justifiable to make financial considerations as the basis for breach of contract where business interests are concerned. While the economic gain is critical to an agreement, such gain is not straightforward where public interest is involved (Cooter & Ulen, 2016). A side payment would be justified in this case. Still, it does not justify outrageous behavior in contracts involving public or governmental institutions because of the risk of pilferage of public resources. Legal Considerations of Efficient Breaches Legal considerations become relevant where the need for performance is of more excellent value to the promisee than it may be to the promisor, meaning this would apply to contracts involving public institutions and government in executing public projects. However, this avenue may be of little consequence in compelling any party to invoke efficient breach concepts because courts are often reluctant to provide relief in the form of penalties or other restrictive performance measures (Shavell, 2009). Ethical Considerations of Efficient Breaches EFFICIENT BREACH 5 This is more subjective in every sense because of the widely-held view that ethical or otherwise is not universally defined and the question of correlation between what is moral and what is legal. Therefore, from this perspective, to breach or not to will entirely depend on the values that a party espouses or how they view what is moral and what is not, or whether even the question of morality is relevant to contracts (Shavell, 2009). Example(s) of economic breach from South Korea legal system and decision to efficiently breach The perfect example, albeit contentious, of an efficient breach that happened is the multiple lawsuits that resulted during the 2008-2009 US mortgage crises (Islam & Verick, 2010). This happened amidst the global recession. The loanees felt that the value of the homes they had acquired had fallen so low that what they owed was higher than the value of the real estate and purposely defaulted because they considered it more efficient than paying the mortgage (Park, H. N., 2017). The lenders then repossessed the homes and land. Viewed against the applicable economic theory, and according to the courts upholding contract law, this does not pass for an efficient breach, as the non-breaching party is left worse off as the breaching party took advantage of the situation. In this case the non-breaching party was heavily affected, it is imperative to note that neither of the parties could have done anything to stop the crisis from occurring. Apparently, such an issue was never foreseen in the contract. The non-breaching party should under no circumstance be left in worse situation compared to the breaching party. Therefore, such a situation doesn’t reflect the ultimate purpose for an efficient breach (Cooter & Ulen, 2016). EFFICIENT BREACH 6 Key Decisions There have been arguments and counter-arguments on whether or not this was an efficient breach for the reason that the lender was left at a disadvantage because of the diminished value of the property they seized against what they were owed. On the other hand, the homeowners who gave up their property argue that being left with a lower credit score cancels out with the diminished property value the lenders may have suffered. Therefore, the outcome leaves both parties equally bruised. Well as the objective is not about leaving equal damage, it turns out this was the best option for either of the parties. Economic effects of the Decisions The effects of the decisions, in this case, transcended the American borders across the Atlantic to Europe. Between the January of 2007 to 2010, American and European banks experienced combined losses of toxic assets and bad loans of $2.8 trillion (UNCTAD, 2010). Americans lost more than a quarter of their net worth and a global economic recession that mainly affected Europe Asia (Shavell, 2009). The result of this crisis, especially in Europe, was that the big banks were seriously affected as they could no longer sustain themselves due to the bad loans that had been defaulted on by the homeowners in the United States. The banks here are mainly those that have operations both in the US and Europe, including JPMorgan, among others, which were responsible for the global dimension the crisis, took and significantly how it affected the Eurozone and the so-called Asian tigers (Corsetti et al., 2009). To avert the economic crisis and the resulting recession of global proportions, countries took a difficult and painful decision to bail out banks and other lenders from the public coffers and for some like Greece, the economic impact of this and a not-so-well thought-out plan was a financial crisis of EFFICIENT BREACH 7 untold magnitude and a total collapse of the economy. Greece had to rely on being bailed out by her peers in the European Union and is yet to get out of the woods fully. Back to the impact of this in the US and official data shows that in two years. Between June 2007 and November 2008, most Americans had seen a significant loss in their net worth, which had gone down by more than 25%. The unemployment crisis in the United States was in proportions only witnessed during the early days of the 29th Century as 8.5 million Americans lost their jobs after a period when the economy had seen impressive numbers in terms of job creation (Shavell, 2009). While the government had taken a position against the fat cats on Wall Street, which was poorly left battered as the stock’s value diminished to levels hitherto unimagined in the 21st Century, the Federal and State governments had to take austerity measures and develop a stimulus plan to bail out the banks as a way of saving the economy and mitigate on an economic recession that threatened to hurt the entire globe. Legal Results As a consequence of the actions of default and following the economic results of the breach by homeowners, there were thousands and thousands of court cases filed in different courts at different states seeking redress (Bartmann, 2017). Ironically, when one would imagine it is the banks and lenders who are the corridors of justice-seeking to compel defaulters to pay their mortgages, it is the public and government that was moving the courts for redress. On the one hand, homeowners sought to stop foreclosures despite them defaulting on their obligation to pay what they owed the lenders and others (Maria, Stefania, Francesco & Ariel, 2016). It was government (both at State and Federal level) suing the big banks and lenders for failure in their fiduciary obligations and creating a scenario that was not realistic during the lending period. EFFICIENT BREACH 8 Legal questions were put by litigants in the courts seeking interpretation of the laws and punitive measures preferred against lenders who had been found to have fallen short of the threshold of disclosure that they were expected to make to the American people and the public (Kilvington, 2018). The litigations were so many that banks and other lenders, some of whom had been found guilty of playing outside of the rules, were forced to fork out substantive amounts of money in compensation to the extent that some of them were unable to fulfill these obligations, further spurring the crisis into a worse off situation (Maria, Stefania, Francesco & Ariel, 2016). Other legal effects were in the shape of new legislation. Government policy meant to impose stricter financial regulation and control in the United States and Europe to avoid a recurring crisis. Conclusion An efficient breach is both positive and negative but essentially good, in my view. As long as parties can act in utmost good faith and goodwill, then it is a perfect concept to be invoked in any given circumstances. Yet, as argued by competing philosophies and schools of thought, it makes a lot of sense to leave the application of this concept as elective as the parties deem it fit. The fact that the law does not seem to provide for anything beyond compensation to the non-breaching party in the event of breach means that the debate about whether it is moral or immoral to breach a contract is here to stay. Either protagonist in the question of the ethical questions in arrangements will continue to hold onto their views. It will be up to individual parties to make their case when faced with the reality of whether or not to breach. Breach of contract is not an issue of the present, several tactics have been adopted in various cases. The EFFICIENT BREACH 9 ultimate desire is to make sure that the non-breaching party is not affected most; mutual agreement has always been the leading tactic in such circumstances. I agree with Robert L. Birmingham when he argues, in his 1970 paper Breach of Contract, Damage Measures, and Economic Efficiency, that purists of the moral predicate of contractual obligations and the enforcement arising from that place have for many years, centuries actually, been premised on the argument that once a promise is made, then such making comes with an inherent moral force which deserves full recognition in the face of the law. In further concurrence, from the moralistic point of view, with Birmingham’s conclusion on why promises should be enforced, I dare say that stakes being to say the least sacred as it were, there is everything wrong to fail to keep them and the society as organized and as well structured as in the 21st Century should not tolerate such dishonor on promises. Nevertheless, in the same vein and taking the opposite view held by legal purists, social condemnation cannot justify the imposition of unwarranted punitive sanctions on individuals for going against the purported moral grain. The law is what it is. If it allows the fixing of such dishonor on promises through payment of damages as the law generally pre-supposes and as is for purposes of giving compensation, then so be it. As the adage goes, one shoe does not necessarily have to and cannot fit all, so liberty should be left to individuals to decide. The most crucial principle of legal purists on the sanctity of a contract is to ensure the non-breaching party is in as good a position as it would have been had the breaching not taken place. By and large, efficient breach of contract is considered as a lawful waiver to the parties that intend to do so, the bottom-line is; there should be important moral standards guided by legal facts to help navigate through the process (Markovits & Schwartz, n.d.). EFFICIENT BREACH 10 References Bartmann, R. (2017). Causes and Effects of 2008 Financial Crisis. HFU Business School, 1–12. Bigoni, Maria; Bortolotti, Stefania; Parisi, Francesco; Porat, Ariel (September 2017). "Unbundling Efficient Breach: An Experiment: Unbundling Efficient Breach". Journal of Empirical Legal Studies. 14 (3): 527–547 Cooter, R. & Ulen, T. (2016). "Law and Economics, 6th edition" (2016). Berkeley Law Books. Book 2. Corsetti, G., Devereux, M. P., Hassler, J., Jenkinson, T., Saint-Paul, G., Sinn, H. W., Sturm, J. E., & Vives, X. (2009). The financial crisis. In EEAG Report on the European Economy. Hadchity, T. K. (2020). Through the Eye of the Needle. The Making of a Caribbean AvantGarde, 145–157. Islam, I., & Verick, S. (2010). The great recession of 2008-09: Causes, consequences and policy responses. From the Great Recession to Labour Market Recovery: Issues, Evidence and Policy Options, 4934, 19–52. Kilvington, L. (2018). Justifying the application of the theory of efficient breach specifically within the context of commercial contracting. September. Klass, G., & Klass, G. (2017). Scholarship @ GEORGETOWN LAW The Rules of the Game and the Morality of Efficient Breach The Rules of the Game and the Morality of Efficient Breach. 71. Maria B., Stefania B., Francesco P. & Ariel P. (2016). "Unbundling Efficient Breach: An EFFICIENT BREACH 11 Experiment," Coase-Sandor Working Paper Series in Law and Economics, No. 785 (2016). Markovits, D., & Schwartz, A. (n.d.). The Myth of Efficient Breach Abstract We defend contract law ’ s preference for the expectation remedy against economic , doctrinal , and moral critics , who argue that a promisee should have a right to specific performance . . 4. 1–86. Morrison, R. (2020). Efficient Breach of International Agreements. Denver Journal of International Law & Policy, 23(1), 8. Park, H. N. (2017). Comparing liquidated damages and punitive penalties in Korea. In-House Community. Retrieved from liquidated-damages-and-punitive-penalties-in-korea/ Shavell, S. (2009). Why breach of contract may not be immoral given the incompleteness of contracts. Harvard Law School Discussion Paper No. 631. Retrieved from UNCTAD. (2010). Review of Regulatory Developments in the Wake of the Financial Crisis. Corporate Governance in the Wake of the Financial Crisis, 1–54. Berkeley Law Berkeley Law Scholarship Repository Berkeley Law Books 7-2016 Law and Economics, 6th edition Robert Cooter Berkeley Law Thomas Ulen Follow this and additional works at: Part of the Economics Commons, and the Law Commons Recommended Citation Cooter, Robert and Ulen, Thomas, "Law and Economics, 6th edition" (2016). Berkeley Law Books. Book 2. This Book is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Berkeley Law Books by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact Authors’ Note LAW AND ECONOMICS (pdf 6th edition) by Robert Cooter and Thomas Ulen This is a pdf version of the latest version (6th edition) of Law and Economics by Cooter and Ulen. The ownership of this book has reverted from the publisher to its authors, so we are posting it online for everyone freely to read or use as a textbook. After more than thirty years as the field’s leading textbook, it continues to cover the latest developments in the economic analysis of property, torts, contracts, legal process, and crimes. Each new edition refines the analytical core, incorporates new applications, and expands previous discussions of empirical legal studies and behavioral law and economics. We hope that you enjoy reading this book as much as we enjoyed writing it. Looking forward to next year, this duet will become an internet symphony that takes full advantage of the internet revolution in publishing. Improvements will be posted to the internet continuously in small amounts (7.1, 7.2, 7.3, etc.), until a new edition appears with large changes (8.0). Not just a textbook, the 7th edition will have supporting materials, including translations. For updates, join the email list found by googling “Cooter and Ulen Berkeley Law Repository”. Perhaps you will have something to contribute to the website. For the best feast, the host supplies the main course each guest contributes a dish. 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Cover Printer: Lehigh Phoenix Text Font: Times Credits and acknowledgments borrowed from other sources and reproduced with permission, in this textbook appear on the appropriate page within text. Copyright © 2012, 2008, 2004, 2000 Pearson Education, Inc. All rights reserved. Manufactured in the United States of America. This publication is protected by Copyright, and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. To obtain permission(s) to use material from this work, please submit a written request to Pearson Education, Inc., Rights and Contracts Department, 501 Boylston Street, Suite 900, Boston, MA 02116, fax your request to 617 671-3447, or e-mail at Many of the designations by manufacturers and sellers to distinguish their products are claimed as trademarks. Where those designations appear in this book, and the publisher was aware of a trademark claim, the designations have been printed in initial caps or all caps. Library of Congress Cataloging-in-Publication Data Cooter, Robert. Law and economics / Robert Cooter, Thomas Ulen.—6th ed. p. cm. Rev. ed. of: Law & economics / Robert Cooter, Thomas Ulen. Includes index. ISBN 978-0-13-254065-0 1. Law and economics. I. Ulen, Thomas. II. Cooter, Robert. Law & economics. III. Title. K487.E3C665 2011 340’.11—dc22 2010049060 10 9 8 7 6 5 4 3 2 1 ISBN-10: 0-13-254065-7 ISBN-13: 978-0-13-254065-0 Contents Preface 1. An Introduction to Law and Economics I. II. III. IV. V. 2. What Is the Economic Analysis of Law? Some Examples 4 1 3 The Primacy of Efficiency Over Distribution in Analyzing Private Law 7 Why Should Lawyers Study Economics? Why Should Economists Study Law? 9 The Plan of This Book 10 A Brief Review of Microeconomic Theory I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. 3. x Overview: The Structure of Microeconomic Theory 11 11 Some Fundamental Concepts: Maximization, Equilibrium, and Efficiency 12 Mathematical Tools 14 The Theory of Consumer Choice and Demand 18 The Theory of Supply 26 Market Equilibrium 28 Game Theory 33 The Theory of Asset Pricing 37 General Equilibrium and Welfare Economics 37 Decision Making Under Uncertainty: Risk and Insurance Profits and Growth 49 Behavioral Economics 50 43 A Brief Introduction to Law and Legal Institutions I. II. III. IV. 55 The Civil Law and the Common Law Traditions 56 The Institutions of the Federal and the State Court Systems in the United States 59 The Nature of a Legal Dispute 62 How Legal Rules Evolve 64 vii viii Contents 4. An Economic Theory of Property I. II. III. 5. IV. V. VI. How are Property Rights Protected? 94 What Can be Privately Owned?—Public and Private Goods VII. VIII. What May Owners Do with Their Property? 105 On Distribution 106 Appendix: The Philosophical Concept of Property 109 112 What can be Privately Owned? 112 How are Property Rights Established and Verified? 143 What May Owners Do with Their Property? 156 What are the Remedies for the Violation of Property Rights? An Economic Theory of Tort Law Defining Tort Law 189 An Economic Theory of Tort Liability 199 Appendix: Liability and Symmetry 228 230 Extending the Economic Model 230 Computing Damages 253 An Empirical Assessment of the U.S. Tort Liability System 261 An Economic Theory of Contract Law I. II. III. IV. V. 166 187 Topics in the Economics of Tort Liability I. II. III. 8. 102 Topics in the Economics of Property Law I. II. 7. 73 The Origins of the Institution of Property: A Thought Experiment 76 An Economic Theory of Property 81 I. II. III. IV. 6. The Legal Concept of Property Bargaining Theory 74 70 Bargain Theory: An Introduction to Contracts 277 An Economic Theory of Contract Enforcement 283 An Economic Theory of Contract Remedies 287 Economic Interpretation of Contracts 291 Relational Contracts: The Economics of the Long-Run 276 299 ix Contents 9. Topics in the Economics of Contract Law I. II. Remedies as Incentives 307 Formation Defenses and Performance Excuses Appendix: Mathematical Appendix 307 341 373 10. An Economic Theory of the Legal Process I. II. III. IV. V. VI. 382 The Goal of the Legal Process: Minimizing Social Costs Why Sue? 386 Exchange of Information 391 Settlement Bargaining 399 Trial 403 Appeals 410 11. Topics in the Economics of the Legal Process I. II. 419 Complaints, Lawyers, Nuisances, and Other Issues in the Legal Process 419 An Empirical Assessment of the Legal Process 442 12. An Economic Theory of Crime and Punishment I. II. The Traditional Theory of Criminal Law 455 An Economic Theory of Crime and Punishment 454 460 13. Topics in the Economics of Crime and Punishment I. II. III. IV. V. VI. VII. Case Index Name Index Subject Index 384 Crime and Punishment in the United States 485 Does Punishment Deter Crime? 491 Efficient Punishment 501 The Death Penalty 510 The Economics of Addictive Drugs and Crime 518 The Economics of Handgun Control 522 Explaining the Decline in Crime in the United States 526 533 535 539 485 Preface T his sixth edition of Law and Economics arrives as the field celebrates its (roughly) 30th birthday. What began as a scholarly niche has grown into one of the most widely used tools of legal analysis. The subject has spread from the United States to many other countries. As scholarship deepens, the concepts in the core of law and economics become clearer and more stable, and new applications develop from the core like biological species evolving through specialization. With each new edition, we continue to refine the explanation of the analytical core and to incorporate new applications selectively as space permits. This edition expands previous discussions of empirical legal studies and behavioral law and economics. As we incorporate new material and respond to the suggestions that so many people have sent us, the book feels more like a symphony and less like a duet. We hope that you enjoy reading this book as much as we enjoyed writing it. The book continues to cover the economic analysis of the law of property, torts, contracts, the legal process and crimes. Instructors and students who have used previous editions will notice that we have reversed the order in which we treat torts and contracts, and we have divided the material on legal process into two chapters—one on theory and one on topics—in parallel with our treatment of all the other substantive areas of the law. Below we describe what is new in this edition, followed by an account of the book’s website. New to This Edition The Sixth Edition has been revised and updated to reflect the latest developments in law and economics. Major changes to the text are as follows: • • • • • x Tables and graphs have been updated. New boxes and suggested readings have been added throughout the text. Web Notes have been updated and added. Chapter 6 contains additional information on liability and customs in trade. Chapter 8 improves the explanation of contractual commitments through a better representation of the principal-agent problem. Preface • • • • • xi Chapter 9 now includes new material on lapses, vicarious liability, incomprehensible harms, punitive damages, mass torts, medical malpractice, and some behavioral aspects of contract remedies. Chapter 10 contains a new treatment of decision making by potential litigants and their lawyers, and new figures and decision trees. Chapter 11, a new chapter, combines new material on the legal process and an updated empirical assessment of various aspects of legal disputes. Chapter 12 now contains the theoretical material on crime and punishment, updated and clarified. Chapter 13 applies the theoretical insights of the previous chapter to wide-ranging policy issues in criminal justice and updates data and information from previous editions. Online Resources The Companion Website presents a wealth of supplementary materials to help in teaching and learning law and economics. “Web Notes” throughout the book indicate the points at which there is additional material on the Companion Website at These notes extend the text presentations, provide guides and links to new articles and books, and contain excerpts from cases. We also include some examples of examinations and problem sets. An updated Instructor’s Manual, reflective of changes to the new edition, will be available for instructors’ reference. The Instructor’s Manual is available for download on the Instructor's Resource center at Acknowledgments We continue to be extremely grateful to our colleagues at Boalt Hall of the University of California, Berkeley, and at the University of Illinois College of Law for the superb scholarly environments in which we work. Our colleagues have been extremely generous with their time in helping us to understand the law better. And in one of the great, ongoing miracles of the academic enterprise, we continue to learn much from the students whom we have the pleasure to teach at Berkeley, Illinois, and elsewhere. We should also thank the many colleagues and students at other universities who have used our book in their classes and sent us many helpful suggestions about how to improve the book. We particularly thank Joe Kennedy of Georgetown, who has given us remarkably thorough and singularly helpful comments on improvements in the text. We’d like to thank the following reviewers for their thoughtful commentary on the fifth edition: Howard Bodenhorn, J. Lon Carlson, Joseph M. Jadlow, and Mark E. McBride. We would also like to thank those who have provided research assistance for this sixth edition: Theodore Ulen, Timothy Ulen, and Brian Doxey. And, also, for their long-time support and help: Jan Crouter, Dhammika Dharmapala, Lee Ann Fennell, xii Preface Nuno Garoupa, John Lopatka, Richard McAdams, Andy Morriss, Tom Nonnenmacher, Noel Netusil, Dan Vander Ploeg, and David Wishart. Finally, we owe particular thanks to our assistants, Ida Ng at Boalt Hall and Sally Cook at the University of Illinois College of Law. They do many big things to help us get our work done, as well as many little things without which much of our work would be impossible to do. Thanks so much. ROBERT D. COOTER Berkeley, CA THOMAS S. ULEN Champaign, IL November, 2010 1 An Introduction to Law and Economics For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. . . . We learn that for everything we have to give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect. Oliver Wendell Holmes. THE PATH OF THE LAW, 10 HARV. L. REV. 457, 469, 474 (1897)1 To me the most interesting aspect of the law and economics movement has been its aspiration to place the study of law on a scientific basis, with coherent theory, precise hypotheses deduced from the theory, and empirical tests of the hypotheses. Law is a social institution of enormous antiquity and importance, and I can see no reason why it should not be amenable to scientific study. Economics is the most advanced of the social sciences, and the legal system contains many parallels to and overlaps with the systems that economists have studied successfully. Judge Richard A. Posner, in MICHAEL FAURE & ROGER VAN DEN BERGH, EDS., ESSAYS IN LAW AND ECONOMICS (1989) U NTIL RECENTLY, LAW confined the use of economics to antitrust law, regulated industries, tax, and some special topics like determining monetary damages. In these areas, law needed economics to answer such questions as “What is the defendant’s share of the market?”; “Will price controls on automobile insurance reduce its availability?”; “Who really bears the burden of the capital gains tax?”; and “How much future income did the children lose because of their mother’s death?” Beginning in the early 1960s, this limited interaction changed dramatically when the economic analysis of law expanded into the more traditional areas of the law, such as property, contracts, torts, criminal law and procedure, and constitutional law.2 This 1 2 Our citation style is a variant of the legal citation style most commonly used in the United States. Here is what the citation means: the author of the article from which the quotation was taken is Oliver Wendell Holmes; the title of the article is “The Path of the Law”; and the article may be found in volume 10 of the Harvard Law Review, which was published in 1897, beginning on page 457. The quoted material comes from pages 469 and 474 of that article. The modern field is said to have begun with the publication of two landmark articles—Ronald H. Coase, The Problem of Social Cost, 3 J. L. & ECON. 1 (1960) and Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961). 1 2 CHAPTER 1 An Introduction to Law and Economics new use of economics in the law asked such questions as, “Will private ownership of the electromagnetic spectrum encourage its efficient use?”; “What remedy for breach of contract will cause efficient reliance on promises?”; “Do businesses take too much or too little precaution when the law holds them strictly liable for injuries to consumers?”; and “Will harsher punishments deter violent crime?” Economics has changed the nature of legal scholarship, the common understanding of legal rules and institutions, and even the practice of law. As proof, consider these indicators of the impact of economics on law. By 1990 at least one economist was on the faculty of each of the top law schools in North America and some in Western Europe. Joint degree programs (a Ph.D. in economics and a J.D. in law) exist at many prominent universities. Law reviews publish many articles using the economic approach, and there are several journals devoted exclusively to the field.3 An exhaustive study found that articles using the economic approach are cited in the major American law journals more than articles using any other approach.4 Many law school courses in America now include at least a brief summary of the economic analysis of law in question. Many substantive law areas, such as corporation law, are often taught from a law-and-economics perspective.5 By the late 1990s, there were professional organizations in law and economics in Asia, Europe, Canada, the United States, Latin America, Australia, and elsewhere. The field received the highest level of recognition in 1991 and 1992 when consecutive Nobel Prizes in Economics6 were awarded to economists who helped to found the economic analysis of law—Ronald Coase and Gary Becker. Summing this up, Professor Bruce Ackerman of the Yale Law School described the economic approach to law as “the most important development in legal scholarship of the twentieth century.” The new field’s impact extends beyond the universities to the practice of law and the implementation of public policy. Economics provided the intellectual foundations for the deregulation movement in the 1970s, which resulted in such dramatic changes in America as the dissolution of regulatory bodies that set prices and routes for airlines, trucks, and railroads. Economics also served as the intellectual force behind the revolution in antitrust law in the United States in the 1970s and 1980s. In another policy area, a commission created by Congress in 1984 to reform criminal sentencing in the federal courts explicitly used the findings of law and economics to reach some of its results. Furthermore, several prominent law-and-economics scholars have become federal judges and use economic analysis in their opinions—Associate Justice Stephen Breyer of the U.S. Supreme Court; Judge Richard A. Posner and Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit; Judge Guido Calabresi of the U.S. 3 4 5 6 For example, the Journal of Law and Economics began in 1958; the Journal of Legal Studies in 1972; Research in Law and Economics, the International Review of Law and Economics, and the Journal of Law, Economics, and Organization in the 1980s; and the Journal of Empirical Legal Studies in 2004. William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quantitative Study, 36 J. L. & ECON. 385 (1993). See, e.g., STEPHEN M. BAINBRIDGE, CORPORATION LAW AND ECONOMICS (2002). The full name of the Nobel Prize in Economics is the Bank of Sweden Prize in the Economic Sciences in Memory of Alfred Nobel. See our book’s website for a full list of those who have won the Nobel Prize and brief descriptions of their work. I. What Is the Economic Analysis of Law? 3 Court of Appeals for the Second Circuit; Judge Douglas Ginsburg, and former Judge Robert Bork of the U.S. Court of Appeals for the D.C. Circuit; and Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. I. What Is the Economic Analysis of Law? Why has the economic analysis of law succeeded so spectacularly, especially in the United States but increasingly also in other countries?7 Like the rabbit in Australia, economics found a vacant niche in the “intellectual ecology” of the law and rapidly filled it. To explain the niche, consider this classical definition of some kinds of laws: “A law is an obligation backed by a state sanction.” Lawmakers often ask, “How will a sanction affect behavior?” For example, if punitive damages are imposed upon the maker of a defective product, what will happen to the safety and price of the product in the future? Or will the amount of crime decrease if third-time offenders are automatically imprisoned? Lawyers answered such questions in 1960 in much the same way as they had 2000 years earlier—by consulting intuition and any available facts. Economics provided a scientific theory to predict the effects of legal sanctions on behavior. To economists, sanctions look like prices, and presumably, people respond to these sanctions much as they respond to prices. People respond to higher prices by consuming less of the more expensive good; presumably, people also respond to more severe legal sanctions by doing less of the sanctioned activity. Economics has mathematically precise theories (price theory and game theory) and empirically sound methods (statistics and econometrics) for analyzing the effects of the implicit prices that laws attach to behavior. Consider a legal example. Suppose that a manufacturer knows that his product will sometimes injure consumers. How safe will he make the product? For a profitmaximizing firm, the answer depends upon three costs: First, the cost of making the product safer, which depends on its design and manufacture; second, the manufacturer’s legal liability for injuries to consumers; and third, the extent to which injuries discourage consumers from buying the product. The profit-maximizing firm will adjust safety until the cost of additional safety equals the benefit from reduced liability and higher consumer demand for the good. Economics generally provides a behavioral theory to predict how people respond to laws. This theory surpasses intuition just as science surpasses common sense. The response of people is always relevant to making, revising, repealing, and interpreting laws. A famous essay in law and economics describes the law as a cathedral—a large, ancient, complex, beautiful, mysterious, and sacred building.8 Behavioral science resembles the mortar between the cathedral’s stones, which support the structure everywhere. 7 8 See Nuno Garoupa & Thomas S. Ulen, The Market for Legal Innovation: Law and Economics in Europe and the United States, 59 ALA. L. REV. 1555 (2008). Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). 4 CHAPTER 1 An Introduction to Law and Economics A prediction can be neutral or loaded with respect to social values. A study finds that higher fines for speeding on the highway will presumably cause less of it. Is this good or bad on balance? The finding does not suggest an answer. In contrast, suppose that a study proves that the additional cost of collecting higher fines exceeds the resulting benefit from fewer accidents, so a higher fine is “inefficient.” This finding suggests that a higher fine would be bad. Efficiency is always relevant to policymaking, because public officials never advocate wasting money. As this example shows, besides neutral predictions, economics makes loaded predictions. Judges and other officials need a method for evaluating laws’ effects on important social values. Economics provides such a method for efficiency. Besides efficiency, economics predicts the effects of laws on another important value: the distribution of income. Among the earliest applications of economics to public policy was its use to predict who really bears the burden of alternative taxes. More than other social scientists, economists understand how laws affect the distribution of income across classes and groups. While almost all economists favor changes that increase efficiency, some economists take sides in disputes about distribution and others do not take sides. Instead of efficiency or distribution, people in business mostly talk about profits. Much of the work of lawyers aims to increase the profits of businesses, especially by helping businesses to make deals, avoid litigation, and obey regulations. These three activities correspond to three areas of legal practice in large law firms: transactions, litigation, and regulation. Efficiency and profitability are so closely related that lawyers can use the efficiency principles in this book to help businesses make more money. Economic efficiency is a comprehensive measure of public benefits that include the profits of firms, the well-being of consumers, and the wages of workers. The logic of maximizing the comprehensive measure (efficiency) is very similar to the logic of maximizing one of its components (profits). A good legal system keeps the profitability of business and the welfare of people aligned, so that the pursuit of profits also benefits the public. II. Some Examples To give you a better idea of what law and economics is about, we turn to some examples based upon classics in the subject. First, we try to identify the implicit price that the legal rule attaches to behavior in each example. Second, we predict the consequences of variations in that implicit price. Finally, we evaluate the effects in terms of efficiency and, where possible, distribution. Example 1: A commission on reforming criminal law has identified certain white-collar crimes (such as embezzling money from one’s employer) that are typically committed after rational consideration of the potential gain and the risk of getting caught and punished. After taking extensive testimony, much of it from economists, the commission decides that a monetary fine is the appropriate punishment for these offenses, not imprisonment. The commission wants to know, “How high should the fine be?” The economists who testified before the commission have a framework for answering this question. The commission focused on rational crimes that seldom occur unless the expected gain to the criminal exceeds the expected cost. The expected cost II. Some Examples 5 depends upon two factors: the probability of being caught and convicted and the severity of the punishment. For our purposes, define the expected cost of crime to the criminal as the product of the probability of a fine times its magnitude. Suppose that the probability of punishment decreases by 5 percent and the magnitude of the fine increases by 5 percent. In that case, the expected cost of crime to the criminal roughly remains the same. Because of this, the criminal will presumably respond by committing the same amount of crime. (In Chapter 12 we shall explain the exact conditions for this conclusion to be true.) This is a prediction about how illegal behavior responds to its implicit price. Now we evaluate this effect with respect to economic efficiency. When a decrease in the probability of a fine offsets an increase in its magnitude, the expected cost of crime remains roughly the same for criminals, but the costs of crime to the criminal justice system may change. The costs to the criminal justice system of increasing a fine’s probability include expenditures on apprehending and prosecuting criminals—for example, on the number and quality of auditors, tax and bank examiners, police, prosecuting attorneys, and the like. While the cost of increasing the probability of catching and convicting white-collar criminals is relatively high, administering fines is relatively cheap. These facts imply a prescription for holding white-collar crime down to any specified level at least cost to the state: Invest little in apprehending and prosecuting offenders, and fine severely those who are apprehended. Thus, the commission might recommend very high monetary fines in its schedule of punishments for white-collar offenses. Professor Gary Becker derived this result in a famous paper cited by the Nobel Prize Committee in its award to him. Chapters 12 and 13 discuss these findings in detail. Example 2: An oil company contracts to deliver oil from the Middle East to a European manufacturer. Before the oil is delivered, war breaks out and the oil company cannot perform as promised. The lack of oil causes the European manufacturer to lose money. The manufacturer brings an action (that is, files a lawsuit) against the oil company for breach of contract. The manufacturer asks the court to award damages equal to the money that it lost. The contract is silent about the risk of war, so that the court cannot simply read the contract and resolve the dispute on the contract’s own terms. The oil company contends that it should be excused from performance because it could do nothing about the war and neither of the contracting parties foresaw it. In resolving the suit, the court must decide whether to excuse the oil company from performance on the ground that the war made the performance “impossible,” or to find the oil company in breach of contract and to require the oil company to compensate the manufacturer for lost profits.9 War is a risk of doing business in the Middle East that one of the parties to the contract must bear, and the court must decide which one it is. What are the consequences of different court rulings? The court’s decision simultaneously accomplishes two things. First, it resolves the dispute between the litigants—“dispute resolution.” Second, it guides future parties who are in similar circumstances about how courts might resolve their dispute—“rule creation.” Law and economics is helpful in resolving 9 For a full discussion of the cases on which this example is based, see Richard A. Posner & Andrew Rosenfield, Impossibility and Related Doctrines in Contract Law, 6 J. LEGAL STUD. 88 (1977). 6 CHAPTER 1 An Introduction to Law and Economics disputes, but it particularly shines in creating rules. Indeed, a central question in this book is, “How will the rule articulated by the lawmaker to resolve a particular dispute affect the behavior of similarly situated parties in the future?” And, “Is the predicted behavior desirable?” The oil company and the manufacturer can take precautions against war in the Middle East, although neither of them can prevent it. The oil company can sign backup contracts for delivery of Venezuelan oil, and the manufacturer can store oil for emergency use. Efficiency requires the party to take precaution who can do so at least cost. Is the oil company or the manufacturer better situated to take precautions against war? Since the oil company works in the Middle East, it is probably better situated than a European manufacturer to assess the risk of war in that region and to take precautions against it. For the sake of efficiency, the court might hold the oil company liable and cite the principle that courts will allocate risks uncovered in a contract to the party who can bear them at least cost. This is the principle of the least-cost risk-bearer,10 which is consistent with some decisions in cases that arose from the Middle Eastern war of 1967. Chapters 8 and 9 consider this principle’s foundation. Example 3: Eddie’s Electric Company emits smoke that dirties the wash hanging at Lucille’s Laundry. Eddie’s can completely abate the pollution by installing scrubbers on its stacks, and Lucille’s can completely exclude the smoke by installing filters on its ventilation system. Installing filters is cheaper than installing scrubbers. No one else is affected by this pollution because Eddie’s and Lucille’s are near to each other and far from anyone else. Lucille’s initiates court proceedings to have Eddie’s declared to be a “nuisance.” If the action succeeds, the court will order Eddie’s to abate its pollution. Otherwise, the court will not intervene in the dispute. What is the appropriate resolution of this dispute? Efficiency requires Lucille’s to install filters, which is cheaper than Eddie’s installing scrubbers. How can the court produce this result? The answer depends on whether or not Eddie’s and Lucille’s can cooperate. First, assume that Eddie’s and Lucille’s cannot bargain together or cooperate. If Lucille’s wins the action and the court orders Eddie’s to abate the pollution, Eddie’s will have to install scrubbers, which is efficient. However, if Lucille’s loses the action, then Lucille’s will have to install filters, which is inefficient. Consequently, it is efficient for Lucille’s to lose the action. Now, consider how the analysis changes if Eddie’s and Lucille’s can bargain together and cooperate. Their joint profits (the sum of the profits of Eddie’s and Lucille’s) will be higher if they choose the cheaper means of eliminating the harm from pollution. When their joint profits are higher, they can divide the gain between them in order to make both of them better off. The cheaper means is also the efficient means. Efficiency is achieved in this example when Lucille’s and Eddie’s bargain together and cooperate, regardless of the rule of law. Ronald Coase derived this result in a famous paper cited by the Nobel Prize Committee when he received the award. Chapter 4 elaborates on this famous result. 10 The principle assumes that the entire loss from nonperformance must be allocated by the court to one of the parties. Alternatively, the court might divide the loss between the parties. III. The Primacy of Efficiency Over Distribution in Analyzing Private Law 7 III. The Primacy of Efficiency Over Distribution in Analyzing Private Law We explained that economists are experts on two policy values—efficiency and distribution. The stakes in most legal disputes have monetary value. Deciding a legal dispute almost always involves allocating the stakes between the parties. The decision about how much of the stakes each party gets creates incentives for future behavior, not just for the parties to this dispute but also for everyone who is similarly situated. In this book we use these incentive effects to make predictions about the consequences of legal decisions, policies, rules, and institutions. In evaluating these consequences, we will focus on efficiency rather than distribution. Why? By making a rule, the division of the stakes in a legal dispute affects all similarly situated people. If a plaintiff in a case is a consumer of a particular good, an investor in a particular stock, or the driver of a car, then a decision for the plaintiff may benefit everyone who consumes this good, invests in this stock, or drives a car. Most proponents of income redistribution, however, have something else in mind. Instead of contemplating distribution to consumers, investors, or drivers, advocates of income redistribution usually target social groups, such as the poor, women, or minorities. Some people passionately advocate government redistribution of income by class, gender, or race for the sake of social justice. A possible way to pursue redistribution is through private law—the law of property, contracts, and torts. According to this philosophy, courts should interpret or make private laws to redistribute income to deserving groups of people. For example, if consumers are poorer on average than investors, then courts should interpret liability rules to favor consumers and disfavor corporations. This book rejects the redistributive approach to private law. Pursuing redistributive goals is an exceptional use of private law that special circumstances may justify but that ought not be the usual use of private law. Here is why. Like the rest of the population, economists disagree among themselves about redistributive ends. However, economists generally agree about redistributive means. By avoiding waste, efficient redistribution benefits everyone relative to inefficient redistribution. By avoiding waste, efficient redistribution also builds support for redistribution. For example, people are more likely to donate to a charitable organization that efficiently redistributes income than to one that spends most of its revenue on administration. A piquant example will help you to appreciate the advantages of efficient redistribution. Assume that a desert contains two oases, one of which has ice cream and the other has none. The advocates of social justice who favor redistribution obtain control over the state and declare that the first oasis should share its ice cream with the second oasis. In response, the first oasis fills a large bowl with ice cream and sends a youth running across the desert carrying the bowl to the second oasis. The hot sun melts some of the ice cream, so the first oasis gives up more ice cream than the second oasis receives. The melted ice cream represents the cost of redistribution. People who disagree vehemently about how much ice cream the first oasis should give to the second oasis may agree that a fast runner should transport it. Also they might agree to choose an honest runner who will not eat the ice cream along the route. 8 CHAPTER 1 An Introduction to Law and Economics Many economists believe that progressive taxation and social welfare programs— the “tax-and-transfer system,” as it is usually called—can accomplish redistributive goals in modern states more efficiently than can be done through modifying or reshuffling private legal rights. There are several reasons why reshuffling private legal rights resembles giving the ice cream to a slow runner. First, the income tax precisely targets inequality, whereas redistribution by private legal rights relies on crude averages. To illustrate, assume that courts interpret a law to favor consumers over corporations in order to redistribute income from rich to poor.11 “Consumers” and “investors” imperfectly correspond to “poor” and “rich.” Consumers of Ferrari automobiles, skiing vacations, and the opera tend to be relatively rich. Many small businesses are organized as corporations. Furthermore, the members of unions with good pension plans own the stocks of large companies. By taxing income progressively, law distinguishes more precisely between rich and poor than by taking the indirect approach of targeting “consumers” and “investors.” Second, the distributive effects of reshuffling private rights are hard to predict. To illustrate, the courts cannot be confident that holding a corporation liable to its consumers will reduce the wealth of its stockholders. Perhaps the corporation will pass on its higher costs to consumers in the form of higher prices, in which case the court’s holding will redistribute costs from some consumers to other consumers. Third, the transaction costs of redistribution through private legal rights are typically high. To illustrate, a plaintiff’s attorney working on a contingency fee in the United States routinely charges one-third of the judgment. If the defendant’s attorney collects a similar amount in hourly fees, then attorneys for the two sides will absorb two-thirds of the stakes in dispute. The tax-and-transfer system is more efficient. Besides these three reasons, there is a fourth: Redistribution by private law distorts the economy more than progressive taxation does. In general, relying on broad-based taxes, rather than narrowly focused laws, reduces the distorting effects of redistributive policies. For example, assume that a law to benefit consumers of tomatoes causes a decline in the return enjoyed by investors in tomato farms. Investors will respond by withdrawing funds from tomato farms and investing in other businesses. Consequently, the supply of tomatoes will be too small and consumers will pay too high a price for them. This law distorts the market for tomatoes. For these reasons and more, economists who favor redistribution and economists who oppose it can agree that private legal rights are usually the wrong way to pursue distributive justice. Unfortunately, lawyers without training in economics seldom appreciate these facts. We have presented several reasons against basing private law on redistributive goals. Specifically, we discussed imprecise targeting, unpredictable consequences, high transaction costs, and distortions in incentives. For these reasons, the general principles of private law cannot rest on income redistribution. (In special circumstances, however, a private law can redistribute relatively efficiently, such as a well-designed law giving crippled people the right to sue employers for not providing wheelchair access to the workplace.) 11 Courts might always find in favor of the individual consumer when he or she sues a corporation regarding liability for harms arising in the use of the corporation’s products. IV. Why Should Lawyers Study Economics? Why Should Economists Study Law? 9 Web Note 1.1 Besides efficiency, what other policy values should matter to making law and applying it? In Fairness Versus Welfare (2002), Louis Kaplow and Steven Shavell of the Harvard Law School say “None.” Others disagree. See Chris Sanchirico, Deconstructing the New Efficiency Rationale, 86 CORNELL L. REV. 1005 (2001), and Daniel Farber, What (If Anything) Can Economics Say About Equity?, 101 MICH. L. REV. 1791 (2003). There is a more complete discussion of this literature under Chapter 1 at the website for this book and links to additional sites of interest. IV. Why Should Lawyers Study Economics? Why Should Economists Study Law? The economic analysis of law unites two great fields and facilitates understanding each of them. You probably think of laws as promoting justice; indeed, many people can think in no other way. Economics conceives of laws as incentives for changing behavior (implicit prices) and as instruments for policy objectives (efficiency and distribution). However, economic analysis often takes for granted such legal institutions as property and contract, which dramatically affect the economy. Thus, differences in laws cause capital markets to be organized differently in Japan, Germany, and the United States. Failures in financial laws and contracting contributed to the banking collapse of 2008 in the United States and the subsequent recession, which was less severe in Japan and Germany. Also, the absence of secure property and reliable contracts paralyzes the economies of some poor nations. Improving the effectiveness of law in poor countries is important to their economic development. Law needs economics to understand its behavioral consequences, and economics needs law to understand the underpinnings of markets. Economists and lawyers can also learn techniques from each other. From economists, lawyers can learn quantitative reasoning for making theories and doing empirical research. From lawyers, economists can learn to persuade ordinary people—an art Stern Warning for Students If you are like most students who read this book—scholars of the highest moral caliber—you need not upset yourself by reading the rest of this paragraph. If you are one of those wicked students—we get a few every year—here is a stern warning for you. According to traditional Chinese beliefs, sinners are tried and punished in ten courts of hell after they die. The sixth court tries the sin of “abusing books,” punishable by being sawn in half from head to toe. The eighth court tries the sin of “cheating on exams,” punishable by being cut open and having your intestines ripped out. So don’t you dare abuse this book or cheat on the exams! 10 CHAPTER 1 An Introduction to Law and Economics that lawyers continually practice and refine. Lawyers can describe facts and give them names with moral resonance, whereas economists are obtuse to language too often. If economists will listen to what the law has to teach them, they will find their models being drawn closer to what people really care about. V. The Plan of This Book To benefit from each other, lawyers must learn some economics and economists must learn some law. Readers can do so in the next two chapters. Chapter 2 briefly reviews microeconomic theory. If you are familiar with that theory, then you can read the material quickly as a review or skim the headings for unfamiliar topics. As a check, you might try the problems at the end of Chapter 2. Chapter 3 is an introduction to the law and the legal process, which is essential reading for those without legal training. We explain how the legal system works, how the U.S. legal system differs from the rest of the world, and what counts as “law.” Chapter 4 begins the substantive treatment of the law from an economic viewpoint. The chapters on substantive legal issues are arranged in pairs. Chapters 4 and 5 focus on property law; Chapters 6 and 7, on tort law; Chapters 8 and 9, on contract law; Chapters 10 and 11, on resolving legal disputes; and 12 and 13, on criminal law. The first chapter of each pair explains the basic economic analysis of that area of law, and the second chapter applies the core economic theory to a series of topics. So, Chapter 6 develops an economic theory of tort liability, and Chapter 7 applies it to automobile accidents, medical practice, and defective products. Chapters 4 through 11 deal with laws where the typical plaintiff in a suit is a private person (“private law”), and Chapters 12 and 13 deal with criminal law where the plaintiff is the public prosecutor (“public law”). Suggested Readings At the end of every chapter we shall list some of the most important writings on the subject. Please check the website for this book ( for additional resources. BOUCKAERT, BOUDEWIJN, & GERRIT DE GEEST, EDS., ENCYCLOPEDIA OF LAW AND ECONOMICS (rev. ed., 2011). DAU-SCHMIDT, KEN, & THOMAS S. ULEN, EDS., A LAW AND ECONOMICS ANTHOLOGY (1997). MICELI, THOMAS J, THE ECONOMIC APPROACH TO LAW (2d ed. 2008). NEWMAN, PETER, ED., THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND LAW (3 vols., 1998). POLINSKY, A. MITCHELL, AN INTRODUCTION TO LAW AND ECONOMICS (3rd, 2003). POLINSKY, A. MITCHELL, & STEVEN SHAVELL, EDS., HANDBOOK OF LAW AND ECONOMICS, vs. 1 AND 2 (2007). Posner, Richard A., The Decline of Law as an Autonomous Discipline, 1962–1987, 100 HARV. L. REV. 761 (1987). POSNER, RICHARD A., ECONOMIC ANALYSIS OF LAW (7th ed., 2007). SHAVELL, STEVEN, FOUNDATIONS OF THE ECONOMIC ANALYSIS OF LAW (2003). 2 A Brief Review of Microeconomic Theory Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist. . . . It is ideas, not vested interests, which are dangerous for good or evil. JOHN MAYNARD KEYNES, THE GENERAL THEORY OF EMPLOYMENT, INTEREST, AND MONEY (1936) In this state of imbecility, I had, for amusement, turned my attention to political economy. THOMAS DEQUINCEY, CONFESSIONS OF AN ENGLISH OPIUM EATER (1821) Economics is the science which studies human behavior as a relationship between ends and scarce means which have alternative uses. LIONEL CHARLES ROBBINS, LORD ROBBINS, AN ESSAY ON THE NATURE AND SIGNIFICANCE OF ECONOMIC SCIENCE (1932) T of law draws upon the principles of microeconomic theory, which we review in this chapter. For those who have not studied this branch of economics, reading this chapter will prove challenging but useful for understanding the remainder of the book. For those who have already mastered microeconomic theory, reading this chapter is unnecessary. For those readers who are somewhere in between these extremes, we suggest that you begin reading this chapter, skimming what is familiar and studying carefully what is unfamiliar. If you’re not sure where you lie on this spectrum of knowledge, turn to the questions at the end of the chapter. If you have difficulty answering them, you will benefit from studying this chapter carefully. HE ECONOMIC ANALYSIS I. Overview: The Structure of Microeconomic Theory Microeconomics concerns decision making by individuals and small groups, such as families, clubs, firms, and governmental agencies. As the famous quote from Lord Robbins at the beginning of the chapter says, microeconomics is the study of how 11 12 CHAPTER 2 A Brief Review of Microeconomic Theory scarce resources are allocated among competing ends. Should you buy that digital audiotape player you’d like, or should you buy a dapper suit for your job interview? Should you take a trip with some friends this weekend or study at home? Because you have limited income and time and cannot, therefore, buy or do everything that you might want to buy or do, you have to make choices. Microeconomic theory offers a general theory about how people make such decisions. We divide our study of microeconomics into five sections. The first is the theory of consumer choice and demand. This theory describes how the typical consumer, constrained by a limited income, chooses among the many goods and services offered for sale. The second section deals with the choices made by business organizations or firms. We shall develop a model of the firm that helps us to see how the firm decides what goods and services to produce, how much to produce, and at what price to sell its output. In the third section, we shall consider how consumers and firms interact. By combining the theory of the consumer and the firm, we shall explain how the decisions of consumers and firms are coordinated through movements in market price. Eventually, the decisions of consumers and firms must be made consistent in the sense that somehow the two sides agree about the quantity and price of the good or service that will be produced and consumed. When these consumption and production decisions are consistent in this sense, we say that the market is in equilibrium. We shall see that powerful forces propel markets toward equilibrium, so that attempts to divert the market from its path are frequently ineffectual or harmful. The fourth section of microeconomic theory describes the supply and demand for inputs into the productive process. These inputs include labor, capital, land, and managerial talent; more generally, inputs are all the things that firms must acquire in order to produce the goods and services that consumers or other firms wish to purchase. The final section of microeconomics deals with the area known as welfare economics. There we shall discuss the organization of markets and how they achieve efficiency. These topics constitute the core of our review of microeconomic theory. There are four additional topics that do not fit neatly into the sections noted above but that we think you should know about them in order to understand the economic analysis of legal rules and institutions. These are game theory, the economic theory of decision making under uncertainty, growth theory, and behavioral economics. We shall cover these four topics in the final sections of this chapter. II. Some Fundamental Concepts: Maximization, Equilibrium, and Efficiency Economists usually assume that each economic actor maximizes something: Consumers maximize utility (that is, happiness or satisfaction), firms maximize profits, politicians maximize votes, bureaucracies maximize revenues, charities maximize social welfare, and so forth. Economists often say that models assuming maximizing behavior work because most people are rational, and rationality requires maximization. II. Some Fundamental Concepts: Maximization, Equilibrium, and Efficiency 13 One conception of rationality holds that a rational actor can rank alternatives according to the extent that they give her what she wants. In practice, the alternatives available to the actor are constrained. For example, a rational consumer can rank alternative bundles of consumer goods, and the consumer’s budget constrains her choice among them. A rational consumer should choose the best alternative that the constraints allow. Another common way of understanding this conception of rational behavior is to recognize that consumers choose alternatives that are well suited to achieving their ends. Choosing the best alternative that the constraints allow can be described mathematically as maximizing. To see why, consider that the real numbers can be ranked from small to large, just as the rational consumer ranks alternatives according to the extent that they give her what she wants. Consequently, better alternatives can be associated with larger numbers. Economists call this association a “utility function,” about which we shall say more in the following sections. Furthermore, the constraint on choice can usually be expressed mathematically as a “feasibility constraint.” Choosing the best alternative that the constraints allow corresponds to maximizing the utility function subject to the feasibility constraint. So, the consumer who goes shopping is said to maximize utility subject to her budget constraint. Turning to the second fundamental concept, there is no habit of thought so deeply ingrained among economists as the urge to characterize each social phenomenon as an equilibrium in the interaction of maximizing actors. An equilibrium is a pattern of interaction that persists unless disturbed by outside forces. Economists usually assume that interactions tend toward an equilibrium, regardless of whether they occur in markets, elections, clubs, games, teams, corporations, or marriages. There is a vital connection between maximization and equilibrium in microeconomic theory. We characterize the behavior of every individual or group as maximizing something. Maximizing behavior tends to push these individuals and groups toward a point of rest, an equilibrium. They certainly do not intend for an equilibrium to result; instead, they simply try to maximize whatever it is that interests them. Nonetheless, the interaction of maximizing agents usually results in an equilibrium. A stable equilibrium is one that will not change unless outside forces intervene. To illustrate, the snowpack in a mountain valley is in stable equilibrium, whereas the snowpack on the mountain’s peak may be in unstable equilibrium. An interaction headed toward a stable equilibrium actually reaches this destination unless outside forces divert it. In social life, outside forces often intervene before an interaction reaches equilibrium. Nevertheless, equilibrium analysis makes sense. Advanced microeconomic theories of growth, cycles, and disequilibria exist, but we shall not need them in this book. The comparison of equilibria, called comparative statics, will be our basic approach. Turning to the third fundamental concept, economists have several distinct definitions of efficiency. A production process is said to be productively efficient if either of two conditions holds: 1. It is not possible to produce the same amount of output using a lower-cost combination of inputs, or 2. It is not possible to produce more output using the same combination of inputs. 14 CHAPTER 2 A Brief Review of Microeconomic Theory Consider a firm that uses labor and machinery to produce a consumer good called a “widget.” Suppose that the firm currently produces 100 widgets per week using 10 workers and 15 machines. The firm is productively efficient if 1. it is not possible to produce 100 widgets per week by using 10 workers and fewer than 15 machines, or by using 15 machines and fewer than 10 workers, or 2. it is not possible to produce more than 100 widgets per week from the combination of 10 workers and 15 machines. The other kind of efficiency, called Pareto efficiency after its inventor1 or sometimes referred to as allocative efficiency, concerns the satisfaction of individual preferences. A particular situation is said to be Pareto or allocatively efficient if it is impossible to change it so as to make at least one person better off (in his own estimation) without making another person worse off (again, in his own estimation). For simplicity’s sake, assume that there are only two consumers, Smith and Jones, and two goods, umbrellas and bread. Initially, the goods are distributed between them. Is the allocation Pareto efficient? Yes, if it is impossible to reallocate the bread and umbrellas so as to make either Smith or Jones better off without making the other person worse off.2 These three basic concepts—maximization, equilibrium, and efficiency—are fundamental to explaining economic behavior, especially in decentralized institutions like markets that involve the coordinated interaction of many different people. III. Mathematical Tools You may have been anxious about the amount of mathematics that you will find in this book. There is not much. We use simple algebra and graphs. A. Functions Economics is rife with functions: production functions, utility functions, cost functions, social welfare functions, and others. A function is a relationship between two sets of numbers such that for each number in one set, there corresponds exactly one number in the other set. To illustrate, the columns below correspond to a functional relationship between the numbers in the left-hand column and those in the right-hand column. Thus, the number 4 in the x-column below corresponds to the number 10 in the y-column. In fact, notice that each number in the x-column corresponds to exactly one number in the y-column. Thus, we can say that the variable y is a function of the variable x, or in the most common form of notation. y = f(x). 1 2 Vilfredo Pareto was an Italian-Swiss political scientist, lawyer, and economist who wrote around 1900. There is another efficiency concept—a potential Pareto improvement or Kaldor-Hicks efficiency—that we describe in section IX.C that follows. 15 III. Mathematical Tools This is read as “y is a function of x” or “y equals some f of x.” y-column x-column 2 3 10 10 12 7 3 0 4 6 9 12 Note that the number 4 is not the only number in the x-column that corresponds to the number 10 in the y-column; the number 6 also corresponds to the number 10. In this table, for a given value of x, there corresponds one value of y, but for some values of y, there corresponds more than one value of x. A value of x determines an exact value of y, whereas a value of y does not determine an exact value of x. Thus, in y = f(x), y is called the dependent variable, because it depends on the value of x, and x is called the independent variable. Because y depends upon x in this table, y is a function of x, but because x does not (to our knowledge) depend for its values on y, x is not a function of y. Now suppose that there is another dependent variable, named z, that also depends upon x. The function relating z to x might be named g: z = g(x). When there are two functions, g(x) and f(x), with different dependent variables, z and y, remembering which function goes with which variable can be hard. To avoid this difficulty, the same name is often given to a function and the variable determined by it. Following this strategy, the preceding functions would be renamed as follows: y = f(x) Q y = y(x), z = g(x) Q z = z(x). Sometimes an abstract function will be discussed without ever specifying the exact numbers that belong to it. For example, the reader might be told that y is a function of x, and never be told exactly which values of y correspond to which values of x. The point then is simply to make the general statement that y depends upon x but in an as yet unspecified way. If exact numbers are given, they may be listed in a table, as we have seen. Another way of showing the relationship between a dependent and an independent variable is to give an exact equation. For example, a function z = z(x) might be given the exact form z = z(x) = 5 + x>2, which states that the function z matches values of x with values of z equal to five plus one-half of whatever value x takes. The table below gives the values of z associated with several different values of x: 16 CHAPTER 2 A Brief Review of Microeconomic Theory z-column 6.5 12.5 8.0 6.0 9.5 x-column 3 15 6 2 9 A function can relate a dependent variable (there is always just one of them to a function) to more than one independent variable. If we write y = h(x, z), we are saying that the function h matches one value of the dependent variable y to every pair of values of the independent variables x and z. This function might have the specific form y = h(x, z) = -3x + z, according to which y decreases by 3 units when x increases by 1 unit, and y increases by 1 unit when z increases by 1 unit. B. Graphs We can improve the intuitive understanding of a functional relationship by visualizing it in a graph. In a graph, values of the independent variable are usually read off the horizontal axis, and values of the dependent variable are usually read off the vertical axis. Each point in the grid of lines corresponds to a pair of values for the variables. For an example, see Figure 2.1. The upward-sloping line on the graph represents all of the pairs of values that satisfy the function y = 5 + x>2. You can check this by finding a couple of points that ought to be on the line that corresponds to that function. For example, what if y = 0? What value should x have? If y = 0, then a little arithmetic will reveal that x should equal -10. Thus, the pair (0, -10) is a point on the line defined by the function. What if x = 0? What value will y have? In that case, the second FIGURE 2.1 y Graphs of the linear relationships y = 5 + x>2 (with a positive slope) and y = 5 - x>2 (with a negative slope). 15 y = 5 + x!2 10 5 –x x – 15 – 10 – 5 0 5 –5 10 15 y = 5 – x!2 – 10 –y III. Mathematical Tools 17 term in the right-hand side of the equation disappears, so that y = 5. Thus, the pair of values (5, 0) is a point on the line defined by the function. The graph of y = 5 + x>2 reveals some things about the relationship between y and x that we otherwise might not so easily discover. For example, notice that the line representing the equation slopes upward, or from southwest to northeast. The positive slope, as it is called, reveals that the relationship between x and y is a direct one. Thus, as x increases, so does y. And as x decreases, y decreases. Put more generally, when the independent and dependent variables move in the same direction, the slope of the graph of their relationship will be positive. The graph also reveals the strength of this direct relationship by showing whether small changes in x lead to small or large changes in y. Notice that if x increases by 2 units, y increases by 1 unit. Another way of putting this is to say that in order to get a 10-unit increase in y, there must be a 20-unit increase in x.3 The opposite of a direct relationship is an inverse relationship. In that sort of relationship, the dependent and independent variables move in opposite directions. Thus, if x and y are inversely related, an increase in x (the independent variable) will lead to a decrease in y. Also, a decrease in x will lead to an increase in y. An example of an inverse relationship between an independent and a dependent variable is y = 5 - x>2. The graph of this line is also shown in Figure 2.1. Note that the line is downwardsloping; that is, the line runs from northwest to southeast. QUESTION 2.1: Suppose that the equation were y = 5 + x. Show in a graph like the one in Figure 2.1 what the graph of that equation would look like. Is the relationship between x and y direct or inverse? Is the slope of the new equation greater or less than the slope shown in Figure 2.1? Now suppose that the equation were y = 5 - x. Show in a graph like the one in Figure 2.1 what the graph of that equation would look like. Is the relationship between x and y direct or inverse? Is the slope of the new equation positive or negative? Would the slope of the equation y = 5 - x>2 be steeper or shallower than that of the one in y = 5 - x? The graph of y = 5 + x>2 in Figure 2.1 also reveals that the relationship between the variables is linear. This means that when we graph the values of the independent and dependent variables, the resulting relationship is a straight line. One of the implications of linearity is that changes in the independent variable cause a constant rate of change in the dependent variable. In terms of Figure 2.1, if we would like to know the effect on y of doubling the amount of x, it doesn’t matter whether we investigate that effect when x equals 2 or 3147. The effect on y of doubling the value of x is proportionally the same, regardless of the value of x. The alternative to a linear relationship is, of course, a nonlinear relationship. In general, nonlinear relationships are trickier to deal with than are linear relationships. 3 The slope of the equation we have been dealing with in Figure 2.1 is 21 , which is the coefficient of x in the equation. In fact, in any linear relationship the coefficient of the independent variable gives the slope of the equation. 18 CHAPTER 2 A Brief Review of Microeconomic Theory FIGURE 2.2 y The graph of a nonlinear relationship, given by the equation y = x 2. y = x2 –x x 0 FIGURE 2.3 y The graph of a nonlinear relationship, A = xy. A = xy 0 x They frequently, although not always, are characterized by the independent1 variable being raised to a power by an exponent. Examples are y = x2 and y = 5>x 2. Figure 2.2 shows a graph of y = x2. Another common nonlinear relationship in economics is given by the example A = xy, where A is a constant. A graph of that function is given in Figure 2.3. IV. The Theory of Consumer Choice and Demand The economist’s general theory of how people make choices is referred to as the theory of rational choice. In this section we show how that theory explains the consumer’s choice of what goods and services to purchase and in what amounts. A. Consumer Preference Orderings The construction of the economic model of consumer choice begins with an account of the preferences of consumers. Consumers are assumed to know the things they like and dislike and to be able to rank the available alternative combinations of goods and services according to their ability to satisfy the consumer’s preferences. This involves no more than ranking the alternatives as better than, worse than, or equally as good as one another. Indeed, some economists believe that the conditions they impose on the ordering or ranking of consumer preferences constitute what an economist means by the term rational. What are those conditions? They are that a consumer’s preference ordering or ranking be complete, transitive, and reflexive. For an ordering to be complete simply means that the consumer be able to tell us how she ranks all the IV. The Theory of Consumer Choice and Demand 19 possible combinations of goods and services. Suppose that A represents a bundle of certain goods and services and B represents another bundle of the same goods and services but in different amounts. Completeness requires that the consumer be able to tell us that she prefers A to B, or that she prefers B to A, or that A and B are equally good (that is, that the consumer is indifferent between having A and having B). The consumer is not allowed to say, “I can’t compare them.” Reflexivity is an arcane condition on consumer preferences. It means that any bundle of goods, A, is at least as good as itself. That condition is so trivially true that it is difficult to give a justification for its inclusion. Transitivity means that the preference ordering obeys the following condition: If bundle A is preferred to bundle B and bundle B is preferred to bundle C, then it must be the case that A is preferred to C. This also applies to indifference: If the consumer is indifferent between A and B and between B and C, then she is also indifferent between A and C. Transitivity precludes the circularity of individual preferences. That is, transitivity means that it is impossible for A to be preferred to B, B to be preferred to C, and C to be preferred to A. Most of us would probably feel that someone who had circular preferences was extremely young or childish or crazy. QUESTION 2.2: Suppose that you have asked James whether he would like a hamburger or a hot dog for lunch, and he said that he wanted a hot dog. Five hours later you ask him what he would like for dinner, a hamburger or a hot dog. James answers, “A hamburger.” Do James’s preferences for hot dogs versus hamburgers obey the conditions above? Why or why not? It is important to remember that the preferences of the consumer are subjective. Different people have different tastes, and these will be reflected in the fact that they may have very different preference orderings over the same goods and services. Economists leave to other disciplines, such as psychology and sociology, the study of the source of these preferences. We take consumer tastes or preferences as given, or, as economists say, as exogenous, which means that they are determined outside the economic system.4 An important consequence of the subjectivity of individual preferences is that economists have no accepted method for comparing the strength of people’s preferences. Suppose that Stan tells us that he prefers bundle A to bundle B, and Jill tells us that she feels the same way: She also prefers A to B. Is there any way to tell who would prefer having A more? In the abstract, the answer is, “No, there is not.” All we have from each consumer is the order of preference, not the strength of those preferences. Indeed, there is no metric by which to measure the strength of preferences, although economists sometimes jokingly refer to the “utils” of satisfaction that a consumer is enjoying. The inability to make interpersonal comparisons of well-being has some 4 Many people new to the study of microeconomics will find this assumption of the exogeneity of preferences to be highly unrealistic. And there is some controversy about this assumption even within economics, some economists contending that preferences are endogenous—that is, determined within the economic system by such things as advertising. We cannot elaborate on this controversy here but are well aware of it. 20 CHAPTER 2 A Brief Review of Microeconomic Theory important implications for the design and implementation of public policy, as we shall see in the section on welfare economics. B. Utility Functions and Indifference Curves Once a consumer describes what his or her preference ordering is, we may derive a utility function for that consumer. The utility function identifies higher preferences with larger numbers. Suppose that there are only two commodities or services, x and y, available to a given consumer. If we let u stand for the consumer’s utility, t...

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