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Posner, Economics and the Law: from Law and Economics to an Economic Analysis of Law

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  • Alain Marciano
  • Sophie Harnay

Abstract

The purpose of this article is to discuss Posner's economic analysis of law and to analyse the differences between his economic analysis of law and law and economics. We propose and demonstrate a twofold original argument. First, we show that Posner does not only propose an economic analysis of the working of the legal system but also that his approach has changed in the early 1970s, shifting from a law and economics perspective in which the focus is put on the working of the economic system to an economic analysis of law in which the emphasis is put on the functioning of the legal system. He appears then no longer influenced by Aaron Director and Ronald Coase but rather by Gary Becker. Therefore, and this is the second part of our demonstration, we show that the evolution in Posner's works essentially derives from the influence of Becker and the adoption by the former of the methodological views of the latter. More precisely, we claim that Posner no longer retains a -- restrictive -- definition of economics by subject matter but that he aligns himself on Becker and his broader definition of economics placing nonmarket decisions and method at the core of the discipline. In other words, we argue that Posner is the first who transposes Becker’s definition of economics in law and economics and that this is precisely what makes Posner's economic analysis of law possible and specific, and also of particular importance.

Suggested Citation

  • Alain Marciano & Sophie Harnay, 2008. "Posner, Economics and the Law: from Law and Economics to an Economic Analysis of Law," ICER Working Papers 09-2008, ICER - International Centre for Economic Research.
    • Handle: RePEc:icr:wpicer:09-2008
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    References listed on IDEAS

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    1. Ronald H. Coase, 2008. "The Institutional Structure of Production," Springer Books, in: Claude Ménard & Mary M. Shirley (ed.), Handbook of New Institutional Economics, chapter 2, pages 31-39, Springer.
    2. Hirshleifer, Jack, 1985. "The Expanding Domain of Economics," American Economic Review, American Economic Association, vol. 75(6), pages 53-68, December.
    3. Ronald Coase, 2006. "Marshall on method," Chapters, in: Tiziano Raffaelli & Giacomo Becattini & Marco Dardi (ed.), The Elgar Companion to Alfred Marshall, chapter 21, pages 139-146, Edward Elgar Publishing.
    4. Gary S. Becker, 1974. "Crime and Punishment: An Economic Approach," NBER Chapters, in: Essays in the Economics of Crime and Punishment, pages 1-54, National Bureau of Economic Research, Inc.
    5. Isaac Ehrlich & Richard A. Posner, 1974. "An Economic Analysis of Legal Rulemaking," The Journal of Legal Studies, University of Chicago Press, vol. 3(1), pages 257-286, January.
    6. Gary S. Becker & George J. Stigler, 1974. "Law Enforcement, Malfeasance, and Compensation of Enforcers," The Journal of Legal Studies, University of Chicago Press, vol. 3(1), pages 1-18, January.
    7. Posner, Richard A, 1981. "The Economics of Privacy," American Economic Review, American Economic Association, vol. 71(2), pages 405-409, May.
      • Posner, Richard A., 1980. "The Economics of Privacy," Working Papers 16, The University of Chicago Booth School of Business, George J. Stigler Center for the Study of the Economy and the State.
    8. Johnson, Omotunde E G, 1972. "Economic Analysis, The Legal Framework and Land Tenure Systems," Journal of Law and Economics, University of Chicago Press, vol. 15(1), pages 259-276, April.
    9. R. H. Coase, 2013. "The Problem of Social Cost," Journal of Law and Economics, University of Chicago Press, vol. 56(4), pages 837-877.
    10. Coase, R H, 1988. "The Nature of the Firm: Influence," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 4(1), pages 33-47, Spring.
    11. Ronald H. Coase, 2000. "The new institutional economics," Chapters, in: Claude Ménard (ed.), Institutions, Contracts and Organizations, chapter 1, Edward Elgar Publishing.
    12. 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.
    13. Richard A. Posner, 1974. "Theories of Economic Regulation," Bell Journal of Economics, The RAND Corporation, vol. 5(2), pages 335-358, Autumn.
    14. 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.
    15. Becker, Gary S, 1973. "A Theory of Marriage: Part I," Journal of Political Economy, University of Chicago Press, vol. 81(4), pages 813-846, July-Aug..
    16. Alain Marciano, 2007. "Value and exchange in law and economics: Buchanan versus posner," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 20(2), pages 187-200, September.
    17. Coase, R H, 1996. "Law and Economics and A. W. Brian Simpson," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 103-119, January.
    18. A. Mitchell Polinsky & Steven Shavell, 2005. "Economic Analysis of Law," Discussion Papers 05-005, Stanford Institute for Economic Policy Research.
    19. Richard A. Posner, 1971. "Taxation by Regulation," Bell Journal of Economics, The RAND Corporation, vol. 2(1), pages 22-50, Spring.
    20. 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.
    21. 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.
    22. Robbins, Lionel [Lord], 1981. "Economics and Political Economy," American Economic Review, American Economic Association, vol. 71(2), pages 1-10, May.
    23. William Mitchell, 1989. "Chicago political economy: A public choice perspective," Public Choice, Springer, vol. 63(3), pages 283-292, December.
    24. Posner, Richard A, 1970. "A Statistical Study of Antitrust Enforcement," Journal of Law and Economics, University of Chicago Press, vol. 13(2), pages 365-419, October.
    25. Landes, William M. & Solmon, Lewis C., 1972. "Compulsory Schooling Legislation: An Economic Analysis of Law and Social Change in the Nineteenth Century," The Journal of Economic History, Cambridge University Press, vol. 32(1), pages 54-91, March.
    26. Posner, Richard A, 1987. "The Law and Economics Movement," American Economic Review, American Economic Association, vol. 77(2), pages 1-13, May.
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    3. Alain Marciano & Steve G. Medema, 2018. "Disciplinary Collisions: Blum, Kalven, and the Economic Analysis of Accident Law at Chicago in the 1960s," Post-Print hal-01836082, HAL.

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