Skip to main content Accessibility help
×
Home
Hostname: page-component-684899dbb8-gblv7 Total loading time: 0.5 Render date: 2022-05-20T02:20:19.388Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true }

11 - Law and Economics and Explanation in Contract Law

Published online by Cambridge University Press:  06 July 2009

Mark D. White
Affiliation:
City University of New York
Get access

Summary

INTRODUCTION

Law-and-economics scholars have offered theories that purport to compete with other theories of law, and with other theories of particular doctrinal areas of law. This chapter will explore what it means to have a theory of a particular area of law, using contract law as an example, and will then consider the way in which law-and-economics theories succeed or fail in explaining contract law.

Section I offers a brief overview of the problems and possibilities inherent in theories about a doctrinal area of law (like contract law). Section II addresses the question of whether theories are or should be general and universal rather than particular. Section III introduces the law-and-economics approach, and section IV discusses the role of historical or causal explanation, both in general theorizing about doctrinal areas and in the law-and-economics approach. Section V looks at some less ambitious variations of doctrinal theories from law-and-economics writers, and section VI outlines some critiques and responses to the law-and-economics approach.

THEORIES, EXPLANATION, AND JUSTIFICATION

What does it mean to have “a theory of law” or “a theory of contract law”? Such jurisprudential theories sit uneasily between theories of the humanities and theories of the social sciences. And theories of doctrinal areas do not obviously fit into the more familiar sorts of theories one finds from the physical sciences, declaring the certain causes and effects of objects in their interaction.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Bix, Brian H., 2006, “Joseph Raz and Conceptual Analysis,”American Philosophical Association Newsletter on Philosophy and Law, 6, pp. 1–7Google Scholar
Moore, Michael S., 1990, “A Theory of Criminal Law Theories,”Tel Aviv University Studies in Law, 10, pp. 115–185Google Scholar
Moore, Michael S., 2000, “Theories of Areas of Law,”San Diego Law Review, 37, pp. 731–741Google Scholar
Bix, Brian H., 2007, “Some Reflections on Contract Law Theory,”Problema, 1, pp. 143–201CrossRefGoogle Scholar
2007, “The Moral Impossibility of Contract,”William & Mary Law Review, 48, p. 1647
Solum, Lawrence B., 1987, “On the Indeterminacy Crisis: Critiquing Critical Dogma,”University of Chicago Law Review, 54, pp. 462–503CrossRefGoogle Scholar
Smith, Stephen A., 2004, Contract Theory, Oxford: Oxford University Press, pp. 108–136Google Scholar
Oman, Nathan B., 2007, “The Failure of Economic Interpretations of the Law of Contract Damages,”Washington & Lee Law Review, 64, pp. 829–875Google Scholar
Kraus, Jody S., 2007, “Legal Determinacy and Moral Justification,”William & Mary Law Review, 48, pp. 1773–1787Google Scholar
Kraus, Jody S., 2007, “Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis,”Virginia Law Review, 93, pp. 287–359Google Scholar
Kraus, Jody S., 2002, “Philosophy of Contract Law,” in Coleman, Jules and Shapiro, Scott, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford: Oxford University Press, pp. 694–696Google Scholar
Posner, Richard A., 2007, Economic Analysis of Law, 7th ed., New York: Aspen PublishersGoogle Scholar
Shavell, Steven, 2007, Foundations of Economic Analysis of Law, Cambridge, MA: Harvard University PressGoogle Scholar
Veljanovski, Cento, 2007, Economic Principles of Law, Cambridge: Cambridge University PressCrossRefGoogle Scholar
Fried, Charles, 1981, Contract as Promise: A Theory of Contractual Obligation, Cambridge, MA: Harvard University PressGoogle Scholar
Fried, Charles, 2007, “The Convergence of Contract and Promise,”Harvard Law Review Forum, 120, pp. 1–9Google Scholar
Becker, Gary S., 1976, The Economic Approach to Human Behavior, Chicago: University of Chicago PressGoogle Scholar
Baird, Douglas G., Gertner, Robert H., and Picker, Randal C., 1994, Game Theory and the Law, Cambridge, MA: Harvard University PressGoogle Scholar
Farber, Daniel A. and Frickey, Philip P., 1991, Law and Public Choice: A Critical Introduction, Chicago: University of Chicago PressCrossRefGoogle Scholar
Coase, Ronald H., 1960, “The Problem of Social Cost,”Journal of Law and Economics, 3, pp. 1–44CrossRefGoogle Scholar
Goetz, Charles J. and Scott, Robert E., 1977, “Liquidated Damages, Penalties, and the Just Compensation Principle,”Columbia Law Review, 77, pp. 554–594CrossRefGoogle Scholar
Coleman, Jules L., 2007, “Some Reflections on Richard Brooks's ‘Efficient Performance Hypothesis,’”Yale Law Journal Pocket Part, 116, pp. 416–422Google Scholar
Simpson, A. W. B., 1975, A History of the Common Law of Contract, Oxford: Clarendon Press, pp. 316–326Google Scholar
Baker, J. H., 1981, “Origins of the ‘Doctrine’ of Consideration, 1535–1585,” in Arnold, Morris S. et al., eds., On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, Chapel Hill: University of North Carolina Press, pp. 336–358Google Scholar
Calabresi, Guido, 1998, “Supereditor or Translator: Comments on Coleman,” in Bix, Brian (ed.), Analyzing Law, Oxford: Oxford University Press, pp. 107–115, especially pp. 113–114Google Scholar
Posner, Richard A., 1983, The Economics of Justice, Cambridge, MA: Harvard University Press, pp. 103–107Google Scholar
Posner, Richard A., 1990, The Problems of Jurisprudence, Cambridge, MA: Harvard University Press, pp. 353–374Google Scholar
Craswell, Richard, 2003, “In that Case, What Is the Question? Economics and the Demands of Contract Theory,”Yale Law Journal, 112, pp. 903–924CrossRefGoogle Scholar
Priest, George L., 1977, “The Common Law Process and the Selection of Efficient Rules,”Journal of Legal Studies, 6, pp. 65–82CrossRefGoogle Scholar
Rubin, Paul H., 1977, “Why Is the Common Law Efficient?”Journal of Legal Studies, 6, pp. 51–63CrossRefGoogle Scholar
Priest, George L., 1980, “Selective Characteristics of Litigation,”Journal of Legal Studies, 9, pp. 399–421, especially pp. 409–415CrossRefGoogle Scholar
Parisi, Francesco, 2004, “Positive, Normative, and Functional Schools in Law and Economics,”European Journal of Law and Economics, 18, pp. 259–272;CrossRefGoogle Scholar
Craswell, Richard, 1989, “Contract Law, Default Rules, and the Philosophy of Promising,”Michigan Law Review, 88, pp. 489–529CrossRefGoogle Scholar
Goldberg, Victor, 2006, Framing Contract Law: An Economic Perspective, Cambridge, MA: Harvard University Press, p. 2Google Scholar
Coleman, Jules, 2001, The Practice of Principle, Oxford: Oxford University Press, pp. 13–24Google Scholar
Ayres, Ian, 2003, “Valuing Modern Contract Scholarship,”Yale Law Journal, 112, pp. 881–882CrossRefGoogle Scholar
Posner, Eric A., 2003, “Economic Analysis of Contract Law after Three Decades: Success or Failure?”Yale Law Journal, 112, pp. 829–880CrossRefGoogle Scholar
Ayres, Ian and Madison, Kristin, 1999, “Threatening Inefficient Performance of Injunctions and Contracts,”University of Pennsylvania Law Review, 148, pp. 56, 87, 91CrossRefGoogle Scholar
Hanson, Jon D. and Hart, Melissa R., 1996, “Law and Economics,” in Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory, Oxford: Blackwell Publishers, pp. 311–331Google Scholar
Kahneman, Daniel, Slovic, Paul, and Tversky, Amos, 1982, Judgment under Uncertainty: Heuristics and Biases, Cambridge: Cambridge University PressCrossRefGoogle Scholar
Simon, Herbert A., 1955, “A Behavioral Model of Rational Choice,”Quarterly Journal of Economics, 69, pp. 99–118CrossRefGoogle Scholar
Sunstein, Cass R., ed., 2000, Behavioral Law and Economics, Cambridge: Cambridge University PressCrossRef
Bar-Gill, Oren, 2008, “The Behavioral Economics of Consumer Contracts,”Minnesota Law Review, 92, pp. 749–802Google Scholar
Epstein, Richard A., 2008, “The Neoclassical Economics of Consumer Contracts,”Minnesota Law Review, 92, pp. 803–835Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×