Document Type

Working Paper

Publication Date

2020

Center/Program

Center for Law and Economic Studies

Abstract

The law and economics movement has transformed the analysis of private law in the United States and increasingly around the world. As the field developed from 1970 to the early 2000s, scholars have developed countless insights about the operation and effects of law and legal institutions. Throughout this period, the discipline of law and economics has benefited from a partnership among trained economists and academic lawyers. Yet, the tools that are used derive primarily from economics and not law. A logical question thus demands attention: what role do academic lawyers play in law and economics scholarship? In this Essay, we offer an interpretive theory of the practice of law and economics scholarship over the past 50 years that integrates both the known skills of the economist and the methodological skills of the academic lawyer. We claim that, in addition to the legal resources they provide to the economic analyst, academic lawyers have cognizable analytical skills developed both through their involvement in law as an applied discipline and their mastery of the analogical method of the common law that is deployed in normative argument. We draw on this use of analogy as argument to explicate differences in the ways that economists and lawyers analyze some of the building blocks of our economy, including the relationship between formal and informal modes of enforcement and the reasons why obsolete and inefficient terms persist in certain standardized contracts. By enriching the standard economic model with insights from other disciplines, and visualizing the connections among those disciplines, the lawyer provides skills that are critically important inputs to advancing normative claims.

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