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Justice without romance. The history of the economic analyses of judges behavior -1960-1993

Author

Listed:
  • Alain Marciano

    (MRE - Montpellier Recherche en Economie - UM - Université de Montpellier, MRE - Montpellier Recherche en Economie - UM - Université de Montpellier)

  • Alessandro Melcarne

    (EconomiX - EconomiX - UPN - Université Paris Nanterre - CNRS - Centre National de la Recherche Scientifique)

  • Giovanni Battista Ramello

    (Dipartimento di scienze giuridiche ed economiche, Universita degli studi del piemonte orientale - Universita degli studi del piemonte orienta)

Abstract

Richard Posner's "What Do Judges and Justices Maximize?" (1993a) is not, as usually believed, the first analysis of judges' behaviors made by using the assumption that judges are rational and maximize a utility function. It arrived at the end of a rather long process. This paper recounts the history of this process, from the "birth" of law and economics in the 1960s to 1993. We show that economic analyses of judge behavior were introduced in the early 1970s under the pen of Posner. At that time, rationality was not modeled in terms of utility maximization. Utility maximization came later. We also show that rationality and incentives were introduced to explain the efficiency of Common Law. Around this theme, a controversy took place that led Posner, and other economists, to postpone their analysis of judicial behavior until the 1990s. By then, the situation had changed. New and conclusive evidence of judges' utility maximizing behavior demanded for a general theory to be expressed. In addition, the context was favorable to Chicago economists. It was time for Posner to publish his article.

Suggested Citation

  • Alain Marciano & Alessandro Melcarne & Giovanni Battista Ramello, 2020. "Justice without romance. The history of the economic analyses of judges behavior -1960-1993," Post-Print hal-02306821, HAL.
    • Handle: RePEc:hal:journl:hal-02306821
    DOI: 10.1017/S105383721900052X
    Note: View the original document on HAL open archive server: https://hal.science/hal-02306821
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    References listed on IDEAS

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    1. William M. Landes, 1968. "The Economics of Fair Employment Laws," Journal of Political Economy, University of Chicago Press, vol. 76(4), pages 507-507.
    2. William M. Landes, 1974. "An Economic Analysis of the Courts," NBER Chapters, in: Essays in the Economics of Crime and Punishment, pages 164-214, National Bureau of Economic Research, Inc.
    3. Coase, R H, 1993. "Law and Economics at Chicago," Journal of Law and Economics, University of Chicago Press, vol. 36(1), pages 239-254, April.
    4. Landes, William M & Posner, Richard A, 1975. "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, University of Chicago Press, vol. 18(3), pages 875-901, December.
    5. Posner, Richard A, 1971. "Killing or Wounding to Protect a Property Interest," Journal of Law and Economics, University of Chicago Press, vol. 14(1), pages 201-232, April.
    6. Posner, Richard A, 1993. "Gary Becker's Contributions to Law and Economics," The Journal of Legal Studies, University of Chicago Press, vol. 22(2), pages 211-215, June.
    7. Simon Rottenberg, 1973. "The Economics of Crime and Punishment," Books, American Enterprise Institute, number 920506, September.
    8. Giovanni B. Ramello & Alain Marciano, 2018. "Cesare Beccaria: back to the future of law and economics," European Journal of Law and Economics, Springer, vol. 46(3), pages 271-274, December.
    9. Stigler, George J, 1992. "Law or Economics?," Journal of Law and Economics, University of Chicago Press, vol. 35(2), pages 455-468, October.
    10. Anthony Downs, 1957. "An Economic Theory of Political Action in a Democracy," Journal of Political Economy, University of Chicago Press, vol. 65(2), pages 135-135.
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    12. Richard A. Posner, 1971. "Taxation by Regulation," Bell Journal of Economics, The RAND Corporation, vol. 2(1), pages 22-50, Spring.
    13. Harnay, Sophie & Marciano, Alain, 2009. "Posner, Economics And The Law: From €Œlaw And Economics†To An Economic Analysis Of Law," Journal of the History of Economic Thought, Cambridge University Press, vol. 31(2), pages 215-232, June.
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    Cited by:

    1. Jean-Baptiste Fleury & Alain Marciano, 2022. "Richard A. Posner (1939–)," Springer Books, in: Robert A. Cord (ed.), The Palgrave Companion to Chicago Economics, chapter 35, pages 901-923, Springer.
    2. Caio Castelliano & Peter Grajzl & Tomas Aquino Guimaraes & Andre Alves, 2021. "Judicial enforcement and caseload: theory and evidence from Brazil," European Journal of Law and Economics, Springer, vol. 52(1), pages 137-168, August.
    3. Marciano, Alain & Ramello, Giovanni B., 2019. "Introduction to the symposium on the empirics of judicial institutions," Journal of Institutional Economics, Cambridge University Press, vol. 15(1), pages 73-80, February.
    4. Alain Marciano & Giovanni Ramello & Hans-Bernd Schaefer, 2020. "Foreword, special issue: economic analysis of litigations 2," European Journal of Law and Economics, Springer, vol. 50(1), pages 1-5, August.
    5. Alain Marciano & Giovanni Battista Ramello, 2017. "The judge, the academic and the public intellectual: the totemic scholarship of Richard A. Posner," European Journal of Law and Economics, Springer, vol. 43(3), pages 389-392, June.
    6. Jean-Baptiste Fleury & Alain Marciano, 2022. "Methodological Individualism and the Foundations of the "Law and Economics" movement," Post-Print hal-03820441, HAL.

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    Keywords

    Self-interest; Utility Maximization; Judges; Judicial decision making; Rationality;
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