Document Type

Article

Publication Title

Vanderbilt Law Review

Abstract

In contrast to Americans, there is a paucity of interest in economic theory among continental scholars. One view is that the explanation lies in another aspect of the civil versus common law distinction - a difference in the mode of reasoning which makes the formalism of certain kinds of economic theory more congenial to common law lawyers than to their civil counterparts. If this is true - if economic analysis appeals to American lawyers partly because of its kinship to common law methodology - then there are several implications for law and economics. One is that the subjects of modeling need to be chosen carefully: if models have special salience for legal thinkers, then it is important to be offering models that are geared to the issues lawyers are thinking about. A second implication of seeing common law jurisprudence as particularly susceptible to economic analysis lies in making sure that the common features of the formalism in common law and in economics do not obscure a crucial distinction between the two. Common law's analogic reasoning looks at how particular rules play on specified facts; it is not terribly relevant whether the facts leading up to the rule matched the historical truth about the case where the rule was articulated. This is not so when law is derived from models-there, underlying facts matter.

First Page

1821

Volume

53

Publication Date

2000

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