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Law, Economics, and Courts  

Nuno Garoupa

Law and economics is an important, growing field of specialization for both legal scholars and economists. It applies efficiency analysis to property, contracts, torts, procedure, and many other areas of the law. The use of economics as a methodology for understanding law is not immune to criticism. The rationality assumption and the efficiency principle have been intensively debated. Overall, the field has advanced in recent years by incorporating insights from psychology and other social sciences. In that respect, many questions concerning the efficiency of legal rules and norms are still open and respond to a multifaceted balance among diverse costs and benefits. The role of courts in explaining economic performance is a more specific area of analysis that emerged in the late 1990s. The relationship between law and economic growth is complex and debatable. An important literature has pointed to significant differences at the macro-level between the Anglo-American common law family and the civil law families. Although these initial results have been heavily scrutinized, other important subjects have surfaced such as convergence of legal systems, transplants, infrastructure of legal systems, rule of law and development, among others.


The Law and Economics of Employment Discrimination Law  

Joni Hersch and Blair Druhan Bullock

The labor market is governed by a panoply of laws, regulating virtually all aspects of the employment relation, including hiring, firing, information exchange, privacy, workplace safety, work hours, minimum wages, and access to courts for redress of violations of rights. Antidiscrimination laws, especially Title VII, notably prohibit employment discrimination on the basis of race, color, religion, sex, and national origin. Court decisions and legislation have led to the extension of protection to a far wider range of classes and types of workplace behavior than Title VII originally covered. The workplace of the early 21st century is very different from the workplace when the major employment discrimination statutes were enacted, as these laws were conceived as regulating an employer–employee relationship in a predominantly white male labor market. Prior emphasis on employment discrimination on the basis of race and sex has been superseded by enhanced attention to sexual harassment and discrimination on the basis of disability, sexual orientation, gender identity, and religion. Concerns over the equity or efficiency of the employment-at-will doctrine recede in a workforce in which workers are increasingly categorized as independent contractors who are not covered by most equal employment laws. As the workplace has changed, the scholarship on the law and economics of employment law has been slow to follow.


The Law and Economics of Mergers and Acquisitions  

Charles R. Korsmo

Law and economics has proved a particularly fruitful scholarly approach in the field of mergers and acquisitions. A huge law and economics literature has developed, providing critical insights into merger activity in general and the proper role of corporate and securities law in regulating this activity. Early economic research examined the motivations for merger activity and the antitrust implications of mergers. Later scholarship elucidated the important disciplining effects on management from merger activity and the market for corporate control. If management performs poorly, causing a firm to become undervalued relative to a well-managed firm, the firm becomes vulnerable to a takeover where management will be replaced. This prospect provides a powerful incentive for management to perform well. More recent work has revealed the limitations of market discipline on management actions in the merger context, and the corresponding role of corporate law in protecting stockholders. Because a merger is generally the final interaction between management and the other stakeholders in a firm, the typical constraints and mechanisms of accountability that otherwise constrain managerial opportunism may be rendered ineffective. This work has played a central role in informing modern jurisprudence. It has shaped the application of enhanced judicial scrutiny of management actions in the merger context, as embodied in the landmark Delaware cases Unocal and Revlon. The law and economics literature has also made important contribution to more recent developments in stockholder appraisal. The law and economics tradition has also provided a useful framework for evaluating the dynamics of merger litigation, including stockholder appraisal, and the extent to which such litigation can be made to serve a useful role in corporate governance.


The Economics of the Law of the Sea  

Till Markus and Gerd Markus

The Economics of the Law of the Sea (LoS) quite generally investigates how the LoS has developed in the past, how it functions at present, and how it could serve in the future. It explores economic factors that shape the LoS, assesses its economic effects, and evaluates different legal options from an economic perspective with a view to achieving specific goals. Accordingly, it can address a large variety of topics and pick from a wide range of ideas, analytical frames, and tools. Studies in this area can, for example, investigate economic drivers that have influenced the development of the modern LoS, analyze general economic characteristics of ocean resources, explore the economics of specific ocean-related activities governed by the LoS (exploiting the sea floor, fishing, protecting coasts against sea level rise, etc.), and assess important economic effects of selected LoS measures (drawing boundaries, creating marine enclosures, and establishing permit regimes). Economic analyses of the LoS are particularly valuable in linking information regarding facts and norms, for example, by illuminating the economic dimensions of conflicts to lawyers or translating specific regulatory approaches into costs and benefits. In this way, it may contribute to managing oceans more rationally, efficiently, sustainably, and peacefully.


The Positive Economic Theory of Tort Law  

Mark F. Grady

Tort law is part of the common law that originated in England after the Norman Conquest and spread throughout the world, including to the United States. It is judge-made law that allows people who have been injured by others to sue those who harmed them and collect damages in proper cases. Since its early origins, tort law has evolved considerably and has become a full-fledged “grown order,” like the economy, and can best be understood by positive theory, also like the economy. Economic theories of tort have developed since the early 1970s, and they too have evolved over time. Their objective is to generate fresh insight about the purposes and the workings of the tort system. The basic thesis of the economic theory is that tort law creates incentives for people to minimize social cost, which is comprised of the harm produced by torts and the cost of the precautions necessary to prevent torts. This thesis, intentionally simple, generates many fresh insights about the workings and effects of the tort system and even about the actual legal rules that judges have developed. In an evolved grown order, legal rules are far less concrete than most people would expect though often very clear in application. Beginning also in the 1970s, legal philosophers have objected to the economic theory of tort and have devised philosophical theories that compete. The competition, moreover, has been productive because it has spurred both sides to revise and improve their theories and to seek better to understand the law. Tort law is diverse, applicable to many different activities and situations, so developing a positive theory about it is both challenging and rewarding.


US Antitrust Law and Policy in Historical Perspective  

Laura Phillips Sawyer

The key pieces of antitrust legislation in the United States—the Sherman Antitrust Act of 1890 and the Clayton Act of 1914—contain broad language that has afforded the courts wide latitude in interpreting and enforcing the law. This article chronicles the judiciary’s shifting interpretations of antitrust law and policy over the past 125 years. It argues that jurists, law enforcement agencies, and private litigants have revised their approaches to antitrust to accommodate economic shocks, technological developments, and predominant economic wisdom. Over time an economic logic that prioritizes lowest consumer prices as a signal of allocative efficiency—known as the consumer welfare standard—has replaced the older political objectives of antitrust, such as protecting independent proprietors or small businesses, or reducing wealth transfers from consumers to producers. However, a new group of progressive activists has again called for revamping antitrust so as to revive enforcement against dominant firms, especially in digital markets, and to refocus attention on the political effects of antitrust law and policy. This shift suggests that antitrust may remain a contested field for scholarly and popular debate.