The Economist in Spite of Himself
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Description
I chose this chapter's title in order to hint at the weakness of my credentials for being classified as a 'founder' of law and economics. In order to make out this negative claim, I shall have at times to be regrettably autobiographical in order to explain my own three-stage intellectual progression. The first stage was an initial hostility to the larger claims of law and economics. The second stage was a cautious conversion to its use. The third state, which reflects my current view, is that, properly understood, economics is indispensable both for work on a wide range of technical legal problems and for work in such collateral disciplines as legal history and moral philosophy. One reason for tracing the path of my own intellectual development is that, I suspect, it parallels the evolution of thought of many other individuals. Normative intellectual work requires a lot of trial and error in which theories that seem to give satisfactory answers in their initial areas of application work less well on matters somewhat further removed. In my case, this evolution of substantive views covers several key dimensions. The first shift involves what might be regarded as the locus of inquiry. Lawyers do not enter particular disputes as social planners. They are most likely to be called on to give advice when something has gone wrong: a contract has been breached; an injury has occurred. Their job is to figure out who is responsible for that loss by looking at the parties who are immediately involved in it. In many cases, it is to prevent cases of rank injustice, which should inspire sentiments of outrage and dismay. The case method of instruction, which is frequent in common law countries, only reinforces the view that lawyers get involved at the back-end of any transaction, where their role is to find a convenient, just or proper resolution to a particular dispute. That function is in conscious opposition to the desire to plan and shape the way in which people should conduct themselves in ordinary life. Today I think that this after-the-fact approach is incomplete for a number of reasons. First, lawyers do a large amount of planning of transactions for their clients, in which the objective is to avoid rather than to resolve disputes. That is why law schools offer courses in such subjects as business planning, estate planning, and land planning. Second, from a social perspective, any reasoned decisions in individual cases will do more than lay to rest particular disputes in the name of finality and social order. Judicial decisions do not consist solely of orders of who should pay whom or do or refrain from particular actions. Owing to the generality of their reasons, judicial opinions necessarily influence future conduct by other individuals in similar transactions. The legal analyst, therefore, has to learn to paint on a somewhat broader canvas than any initial preoccupation with troublesome disputes might otherwise suggest.
Source Publication
The Origins of Law and Economics: Essays by the Founding Fathers
Source Editors/Authors
Francesco Parisi, Charles K. Rowley
Publication Date
2005
Recommended Citation
Epstein, Richard A., "The Economist in Spite of Himself" (2005). Faculty Chapters. 401.
https://gretchen.law.nyu.edu/fac-chapt/401
