Theory And Practice Of The Economic Analysis Of Law

1006 words - 5 pages



1. General Approaches
Overview paper on classical, behavioural, neuro-economical approaches.

2. The Assumption of Economic Rationality
Standard economic analysis assumes that people are rational maximizers of their own utility. This assumption consists of a cognitive element (“thin rationality”, the assumption that people’s preferences meet the requirements of completeness, dominance, invariance, etc.), and a motivational one (“thick rationality”, the assumption that ultimately people only care about their own utility). Students should analyze the fruitfulness and limitations of this ...view middle of the document...

It is also possible to reformulate the topic as “Default Rules – Economic and Behavioral Perspectives”

7. Economic Analysis and Redistribution through Private Law
This topic, or a variation thereof, may deal with both economics’ attitude to distributive issues (a huge subject of its own), and with the more concrete issue of using private law doctrines – contracts, torts, property law – to attain redistribution. Kaplow and Shavell’s article should serve as the starting point for the research.

8. Economic Analysis of the Good Faith Purchaser Doctrine
All legal systems face the question of how to resolve the conflict between original owners and good faith purchasers. The question arises with respect to various assets (movables, land, and money), various circumstances in which the original owner lost the asset, and various circumstances, in which the purchaser got it (buying from a merchant, receiving a gift). There is considerable economic analysis of this issue.

9. Economic Analysis of Pre-contractual Disclosure Duties
A classic topic and one in which economic analysis made its first contributions (Kronman’s seminal article). It would be interesting to ask the students to examine the extent to which Kronman’s theory can explain judicial decisions – in this case the decisions of Swiss courts (a comparable study was made by Krawiec & Zeiler in the US, but the students obviously need not do a large-scale empirical study).

10. Economic Analysis of Gratuitous Contracts
Gratuitous contracts seem to contradict the assumption that people are rational maximizers of their own utility. The economic analysis of such contracts is also influenced by the hostility of the common law to the enforceability of contracts without “consideration”. There have nevertheless been economic analyses of such contracts.

11. Enforced Performance (or “Specific Performance”) as a Remedy for Breach of Contract
This is one of the most controversial issues in economic analysis of private law, revolving around the notion of ‘efficient breach’. Part of the debate is within the economic discourse, and part of it has to do with the tension between economic analysis and the deontological duty to keep one’s promise.


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