Law and economics should be used for economic questions

Article Abstract:

The use of economic theory by the judiciary should be limited to cases concerning economic issues where theories premised on the rationality of actors with material goals can be relevantly applied without excessive artificiality. Encouraging the generalized use by the judiciary of theories from the discipline of law and economics is arrogant for its dismissal of judicial history and second guessing judicial decisionmakers. The realities of human behavior are that people act irrationally or with common sense and do not act after deliberate economic analyses.

Evaluation

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Judges and economics: normative, positive, and experimental perspectives

Article Abstract:

The prudence of the judiciary's use of economic theories in their decisionmaking concerns three factors. One is that theories from the discipline of law and economics should only be put to normative use by capable judges able to make wise applications. Another is the conservative use of such theories which can explain the existence of seemingly bad or arbitrary rules. The last is the use by judges of other judges' good or bad decisions utilizing such theories because of the resultantly broader scope of analysis.

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Limits to economics as a norm for judicial decisions

Article Abstract:

Implementation of the normative view in the discipline of law and economics that the judiciary ought to attempt to achieve economic goals is not advisable. The outcomes of social engineering have proved to be problematic including in areas of law such as torts where application of economic theory has been highly tauted. Economic theory allows scholars to do a superior job of making predictions which are verifiable, but its harmony with judicial administration and the understandings of citizens is faulty.

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