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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

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  • Sophie Harnay

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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. A. Mitchell Polinsky & Steven Shavell, 2005. "Economic Analysis of Law," Discussion Papers 05-005, Stanford Institute for Economic Policy Research.
    2. Hirshleifer, Jack, 1985. "The Expanding Domain of Economics," American Economic Review, American Economic Association, vol. 75(6), pages 53-68, December.
    3. Coase, Ronald H, 1975. "Marshall on Method," Journal of Law and Economics, University of Chicago Press, vol. 18(1), pages 25-31, April.
    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.
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    Cited by:

    1. Marciano, Alain, 2012. "Guido Calabresi's economic analysis of law, Coase and the Coase theorem," International Review of Law and Economics, Elsevier, vol. 32(1), pages 110-118.
    2. Giovanni B. Ramello, 2016. "The past, present and future of comparative law and economics," Chapters,in: Comparative Law and Economics, chapter 1, pages 3-22 Edward Elgar Publishing.
    3. Peter Leeson, 2012. "An Austrian approach to law and economics, with special reference to superstition," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 25(3), pages 185-198, September.
    4. Alain Marciano, 2012. "How far an Austrian law and economics should be Posnerian?," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 25(4), pages 351-354, December.
    5. repec:kap:ejlwec:v:43:y:2017:i:3:d:10.1007_s10657-017-9558-3 is not listed on IDEAS
    6. Sophie Harnay & Alain Marciano, 2009. "Should I help my neighbor? Self-interest, altruism and economic analyses of rescue laws," European Journal of Law and Economics, Springer, vol. 28(2), pages 103-131, October.
    7. Alain Marciano, 2010. "Calabresi, "law and economics" and the Coase theorem," ICER Working Papers 26-2010, ICER - International Centre for Economic Research.
    8. repec:kap:ejlwec:v:43:y:2017:i:3:d:10.1007_s10657-016-9552-1 is not listed on IDEAS
    9. repec:kap:ejlwec:v:43:y:2017:i:3:d:10.1007_s10657-015-9501-4 is not listed on IDEAS

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