This Article (1) delineates the different kinds of allocative costs that marine-peril contingencies can generate and the different kinds of marine-peril-related decisions that can generate allocative inefficiency (marine-salvage-operation investment decisions; decisions about whether to offer to attempt or to actually attempt marine rescues; decisions about the character of the marine-rescue attempts that are made; decisions by potential rescuees to accept or reject offers of marine-rescue attempts; and decisions by potential rescuees to make or reject various marine-peril-avoidance moves); (2) defines the formal meaning of "the most-allocatively-efficient response a State can make to marine-peril contingencies;" (3) explains why, standing alone, judge-prescribed marine-rescuee-to-rescuer-compensation awards cannot minimize the allocative cost that marine peril generates (the misallocation that marine-peril-related decisions generate); (4) discusses the interdependence of the various types of marine-peril-related decisions that can be made; (5) defines the second-best-allocatively-efficient and the third-best-allocatively-efficient approach to deciding particular issues and the second-best-allocatively-efficient and third-best-allocatively-efficient resolution of a particular issue; (6) executes a partial and preliminary second-best analysis of the factors that determine the impact of any marine-salvage-award formula both on each of the types of marine-peril-related misallocation such awards can affect and on the total amount of marine-peril-related misallocation that the use of any given marine-salvage-award formula will generate; (7) speculates on the differences between the marine-salvor-compensation formula that is second-best-allocatively-efficient and the formula that is third-best-allocatively-efficient; (8) provides an account of the protocol the courts allegedly use to determine the compensation they order defendant marine rescuees to pay plaintiff marine rescuers who have not been able to negotiate a binding price for their services; (9) analyzes the second-best and third-best allocative efficiency of that protocol - i.e., delineates the respects in which that protocol is definitely not second-best-allocatively-efficient and explains why it is extraordinarily unlikely to be third-best-allocatively-efficient; (10) points out that the preceding analysis refutes Landes and Posner's claim that the law of marine salvage "is consistent with" and displays "impressive congruence with" their hypothesis that "the rules of judge-made law are best explained as efforts - however unwitting - to bring about (economically-)efficient results;" (11) delineates the structural deficiencies of the type of argument with which Landes and Posner attempt to establish their conclusion that marine-salvage law is allocatively efficient; (12) asserts that Law & Economics scholars who believe that "judge-made" law in general is allocatively efficient almost always attempt to justify this conclusion with the same type of argument that Landes and Posner made about marine-salvage law; and (13) explains why it is important not only to refute the conclusion that "judge-made law" is allocatively efficient but to demonstrate the inadequacy of the type of argument with which scholars who believe that "judge-made law" is allocative efficient attempt to bolster this position.
Richard S. Markovits,
Marine-Salvage Law and Marine-Peril-Related Policy: A Second-Best and Third-Best Economic-Efficiency Analysis of the Problem, the Law, and the Classic Landes and Posner Study,
U of Texas Law and Economics Research Paper No. 43
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1357