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Published online by Cambridge University Press: 24 January 2025
1 Ogus, and Richardson, , “Economics and the Environment: A Study of Private Nuisance” (1977) 36 Cambridge Law Journal 284CrossRefGoogle Scholar; Ogus, Harris and Phillips, , “Contract Remedies and the Consumer Surplus” (1979) 95 L.Q.R. 581Google Scholar; Oliver, J. M., Law and Economics: An Introduction (1979).Google Scholar
2 For instance the Center for Law and Economic Studies at Columbia University School of Law, and the Institute for Economic Analysis of Law at the University of Virginia School of Law.
3 Gilmore, Grant, The Ages of American Law (1977) 107-111Google Scholar; Gilmore dubs the school “The New Conceptualist”; see also White, G. Edward, Tort Law in America: An Intellectual History (1980).CrossRefGoogle Scholar
4 Posner, , “Utilitarianism, Economics and Legal Theory” (1979) 8 Journal of Legal Studies 103, 107CrossRefGoogle Scholar; for isolated exceptions of Australian legal writing utilising economic analysis see Dickey, and Ward, , “Consumer Legislation in Socio-Economic Perspective: Observations from the Enactments in One State” (1977) 13 University of Western Australia Law Review 378Google Scholar and Galitsky, , “Manufacturers' Liability: An Examination of the Policy and Social Cost of a New Regime” (1979) 3 University of New South Wales Law Journal 145.Google Scholar
5 Id. See also Krier, , Book Review: “Economic Analysis of Law” (1974) 122 University of Pennsylvania Law Review 1664, 1666-1671.CrossRefGoogle Scholar
6 Ogus and Richardson, op. cit. 284.
7 Ibid.
8 Coase, , “The Problem of Social Cost” (1960) 3 Journal of Law and Economics 1.CrossRefGoogle Scholar
9 The article departed from the accepted Pigovian analysis. See Demsetz, , “When Does the Rule of Liability Matter?” (1972) 1 Journal of Legal Studies 13.CrossRefGoogle Scholar
10 Cf. Calabresi, , The Costs of Accidents (1970)Google Scholar, Calabresi, and Melamed, , “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” (1972) 85 Harvard Law Review 1089CrossRefGoogle Scholar; Calabresi, , “Transaction Costs, Resource Allocation and Liability Rules-A Comment” (1968) 11 Journal of Law and Economics 67.CrossRefGoogle Scholar
11 For example: Goetz, and Scott, , “Measuring Sellers' Damages: The Lost Profits Puzzle” (1979) 31 Stanford Law Review 323CrossRefGoogle Scholar; Goetz, and Scott, , “Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach” (1977) 77 Columbia Law Review 554.CrossRefGoogle Scholar
12 For a valuable perspective that this tort system represents a compromise between laissez-faire capitalism and collectivism see Calabresi, , “Torts—The Law of the Mixed Society” (1978) 56 Texas Law Review 519.Google Scholar
13 Borgo, “Causal Paradigms in Tort Law” (1979) 8 Journal of Legal Studies 419.
14 Michelman, “A Comment on Some Uses and Abuses of Economics in Law” (1979) 46 University of Chicago Law Review 307, and Ogus, “Economics, Liberty and the Common Law” (1980) 15 Journal of Society of Public Teachers of Law (N.S.) 42, 50-53.
15 Shuchman, “Theory and Reality in Bankruptcy: The Spherical Chicken” (Autumn 1977) 41 Law and Contemporary Problems 66.
16 Michelman, op. cit. 308.
17 Some deny the value neutral quality of economic analysis; see Cranston, “Creeping Economism: Some Thoughts on Law and Economics” (1977) 4 British Journal of Law and Society 103, 112-113.
18 (1979) 46 University of Chicago Law Review 78.
19 Epstein, “Nuisance Law: Corrective Justice and Its Utilitarian Constraints” (1979) 8 Journal of Legal Studies 49, 74-75.
20 Posner, supra n. 4, 103.
21 Id. 110.
22 Id. 126; by the “theory of rights” he is referring to the influential jurisprudence of Dworkin, Taking Rights Seriously (1977).
23 Atiyah, , Accidents, Compensation and the Law (2nd edition, 1975) 554-557.Google Scholar
24 This thesis is spelt out in greater detail in Posner, “A Theory of Negligence” (1972) 1 Journal of Legal Studies 29.
25 Epstein, “A Theory of Strict Liability” (1973) 2 Journal of Legal Studies 151, and “Defences and Subsequent Pleas in a System of Strict Liability” (1974) 3 Journal of Legal Studies 165. In liability for defective products, reform proposals have favoured strict liability; see The Law Reform Commission and Scottish Law Reform Commission (Law Com. No. 82) (Scot. Law Com. No. 45) Liability for Defective Products (1977) Cmnd. 6831 and Ontario Law Reform Commission, Report on Products Liability (1979).
26 But compare Posner, “Strict Liability: A Comment” (1973) 2 Journal of Legal Studies 205.
27 Leff, “Economic Analysis of Law: Some Realism About Nominalism” (1974) 60 Virginia Law Review 451, 471.
28 The limits of the realist school are well discussed in Woodard, “The Limits of Legal Realism: An Historical Perspective“ (1968) 54 Virginia Law Review 68,9; G. Edward White, Op, cit. 230-235 perceptively argues that the economic theory of Posner, amongst other universalist trends, is a reaction to the “atomization” of the law in the hands of the Realists.
29 But compare Cranston, op. cit. 111-112.
30 (1974) 501 F. 2d 558.
31 Supra n. 10.
32 Posner, supra n. 18, 299-301.
33 Cf. Atiyah, The Rise and Fall of Freedom of Contract (1979) 669 in referring to criticisms of facile argument by lawyers by Hayek in Law, Legislation and Liberty (1973); he agrees, “there is force in these remarks”:
[T]hey suggest the somewhat depressing conclusion that the attempt by lawyers to extend their understanding of economic theory may often make matters worse, because most lawyers will only succeed in understanding what was orthodox a generation or two back.
34 Id. [1979] 3 W.L.R. 523. The assumptions of the Chicago school are not universally accepted: Markovits, “A Basic Structure for Microeconomic Policy Analysis in Our Worse-Than-Second-Best World” (1975) Wisconsin Law Review 950.
35 Id. 532.
36 But cf. Fletcher, “Fairness and Utility in Tort Theory” (1972) 85 Harvard Law Review 537; Epstein, supra n. 19.
37 The Master of the Rolls' regard for the game is judicially exposed in Miller v. Jackson [1977] 3 W.L.R. 20, 24.
38 Hence the reliance upon previous case law in Allen v. Gulf Oil Refining Ltd [1979] 3 W.L.R. 523: the rules of precedent in the common law increase efficiency by “firming up” rules, see Landes and Posner, “Legal Precedent: A Theoretical and Empirical Analysis” (1976) 19 Journal of Law and Economics 249.
39 The contractual basis of, at least, private Acts was well recognised in the 19th century: Atkinson v. The Newcastle and Gateshead Waterworks Co. (1877) 2 Ex.D. 441, 445 per Lord Cairns, and Davis & Sons v. Taff Vale Railway Co. [1895] A.C. 542, 559 per Lord Macnaghten.
40 For economic analysis see Alchian, and Allen, , Exchange and Production: Competition, Coordination, and Control (2nd ed., 1977) 279-280.Google Scholar