Private Property and the Public Domain: The Case of Anti-Trust Law
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Description
It takes no acute observer of the modern scene to note the massive impact of economic analysis upon the normative and positive studies of legal rules and institutions. While economics is but one of many social sciences, it is a social science with a difference—or more precisely, with a theory. With its postulate of rational self-interest of individual actors, it is able to convert statements about human behavior into propositions about the maximization of benefits or the minimization of costs. Its set of formalized premises allows economists to generate insights and testable hypotheses that necessarily escape those who are limited to the more intuitive tools of hunch and experience. More to the point here, the powerful and well-thought-out vocabulary of economics is so easily incorporated into legal discourse that it seems as though law and economics must perforce become natural allies. It is difficult to talk about the public interest without mention of transaction costs, public goods, holdouts, and free-rider problems; about antitrust law, without competition. and monopoly; about negligence without risk preference, risk neutrality, and risk aversion; about the duties of trustees, without portfolio theory and efficient markets; about tort damages without discounting the present value. The list of examples can be expanded almost at will to show how economic concepts are embedded in the fabric of legal thought. Indeed, the real question is not whether economics has any relevance to law but, Is there any other game in town?
Source Publication
Ethics, Economics, and the Law
Source Editors/Authors
J. Roland Pennock, John W. Chapman
Publication Date
1982
Recommended Citation
Epstein, Richard A., "Private Property and the Public Domain: The Case of Anti-Trust Law" (1982). Faculty Chapters. 418.
https://gretchen.law.nyu.edu/fac-chapt/418
