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Justice Without Romance: The History Of The Economic Analyses Of Judges’ Behavior, 1960–1993

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  • Marciano, Alain
  • Melcarne, Alessandro
  • Ramello, Giovanni B.

Abstract

Richard Posner’s “What Do Judges and Justices Maximize?” (1993b) 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. That analysis 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 judges’ 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 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

  • Marciano, Alain & Melcarne, Alessandro & Ramello, Giovanni B., 2020. "Justice Without Romance: The History Of The Economic Analyses Of Judges’ Behavior, 1960–1993," Journal of the History of Economic Thought, Cambridge University Press, vol. 42(2), pages 261-282, June.
    • Handle: RePEc:cup:jhisec:v:42:y:2020:i:2:p:261-282_6
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    Cited by:

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    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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