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Law and Social Economics explores several areas in which social economics can contribute to the study of law.





Chapter 1. Toward a Contractarian Theory of Law

For roughly three decades, legal scholarship has been dominated by the application of mainstream economic theory to law.1 The “law and economics” movement, as it is called, has had a substantial influence on nearly every domain of legal analysis. In addition to the financial subjects such as antitrust, bankruptcy, corporations, and tax law, economic analysis has become prevalent in basic fields such as contracts, torts, and property. It has even made inroads into subjects that have traditionally been noneconomic in nature, such as substantive criminal law.2

Claire Finkelstein

Chapter 2. Environmental Ethics, Economics, and Property Law

Conflicts between economic and environmental concerns are numerous, occurring at the highest level of academic methods and in many specific policy applications. Sometimes these conflicts are the inevitable result of trade-offs and differing priorities. Often, though, the conflicts run deeper, to the differences between the worldview of economists and public policy practitioners on the one hand and environmental scholars and activists on the other. To overcome these policy-related conflicts, we must work to bridge the conceptual gap between these schools of thought by identifying the roots of the conflicts and rethinking the institutions that shape our economic life.

Steven McMullen, Daniel Molling

Chapter 3. Individual Rights, Economic Transactions, and Recognition: A Legal Approach to Social Economics

Although markets are based on legal foundations and judiciary problems often concern economic issues, the twentieth century saw a progressive methodological divide between legal and economic studies. In particular, economic theory stands on quite simplistic legal concepts that contribute to hide some important issues at stake. This divide has not been reduced much by the development of the field of law and economics, which simply applies the economics method to legal issues. A necessarily more fruitful field of interaction between these perspectives is promised by social economics, which, since its beginning, has adopted a more integrated and interdisciplinary approach, including the study of property rights and institutions. In particular, among the many issues debated in social economics, the theme of justice in economic exchanges over the course of history has stimulated much fruitful research that still deserves to be further developed. In this field of research, the study of the legal variables comes into direct interaction with economic reasoning. Consequently, categories used in the economic analysis should be harmonized with the legal framework. On the other hand, the choice of the legal theory on which we develop social economy studies is crucial in determining what can and what cannot be seen in terms of pathologies in human interaction.

Stefano Solari

Chapter 4. Institutionalist Method and Forensic Proof

With the sophistication of empirical methods, social science experts have expanded their influence in many forms of litigation. This chapter suggests that forensic economic analysis, when conducted properly, is more closely aligned with the holistic method of economic inquiry followed by institutionalists and other heterodox schools than the formalism of the neoclassical paradigm. It draws upon the methodological differences delineated by Charles Wilbur and Robert Harrison to show that a method of “pattern modeling, storytelling, and holism” provides a better description of reality and truth than relying on a formal model that is more prescriptive than descriptive.1 A deductive method that serves as a parable to achieve an abstract ideal is of little use in the legal setting. Probative forensic analysis requires a holistic melding of anecdotal evidence (storytelling) and empirical validation. As the US Supreme Court acknowledged in the context of employment discrimination (in Int’l. Brotherhood of Teamsters v. United States), stories give context to the statistics.2

Robert M. LaJeunesse

Chapter 5. Retributivist Justice and Dignity: Finding a Role for Economics in Criminal Justice

Mainstream economics has long struggled with crime, an intrinsically moralized area of law that resists attempts to reduce all goals and motivations within it to considerations of efficiency. Legal philosopher Jules Coleman, in response to an attempt to explain the category of crime in terms of transaction structures, wrote that “such a theory has no place for the moral sentiments and virtues appropriate to matters of crime and punishment: guilt, shame, remorse, forgiveness, and mercy, to name a few. A purely economic theory of crime can only impoverish rather than enrich our understanding of the nature of crime.”1 Without mentioning economics outright, legal scholar Herbert Morris bemoaned an approach to the law that “subordinates principle to the realization of social goals, a mode of thinking that focuses, not upon exculpation of the innocent and conviction of the guilty, that is, upon justice, but upon keeping social disruption at an acceptable level.”2

Mark D. White



Chapter 6. Female Genital Mutilation and the Law: A Qualitative Case Study

Female genital mutilation (FGM) or female genital cutting (FGC) is a cultural practice found across much of the African continent. (Both terms are used in the literature, but in this chapter we will use FGM.) Within the context of this book, it is important to highlight that the practice has potentially important economic consequences, not only in terms of the risks it creates for the girls’ health and the associated potential medical and other costs, but also in terms of the broader gender roles it contributes to perpetuate, which tend to limit economic opportunities for women in a wide range of areas, including productive work.

Regina Gemignani, Quentin Wodon

Chapter 7. An Unexamined Oxymoron: Trust but Verify

Early in my introductory economics classes, I go through the various roles of government in the economy. I start with “property rights” and present it as the least questioned government function, agreed to by liberals and conservatives alike. My purpose is in part strategic: a desire to counter the conventional view conveyed by the texts that government only comes into the economy after the establishment of robust markets and not before. Rhetorically, governments is described as “intervening” and “interfering” and is portrayed as a late arrival into the economy.1 Missing from this version of history is consideration of the evidence that enforceable property rights must exist before it is even possible for markets to succeed. What belongs to one must be a matter of fact, not opinion, and accepted as legitimate by others. Perhaps theft should be relegated to the status of an oxymoron when property rights are absent.

David George

Chapter 8. On the Question of Court Activism and Economic Interests in Nineteenth-Century Married Women’s Property Law

In the early years of the American republic, most married women did not enjoy any rights over their property or earnings. According to the common law, a married woman was a femme covert or “covered woman,” meaning that when she married she was placed under the “protective wing” of her husband and had no independent legal status. Furthermore, any contract that a married woman entered into was considered void precisely because she was under “coverture,” carrying no independent agency status; if she wanted to enter into an apprenticeship or convey property, she needed the permission of her husband.

Daniel MacDonald

Chapter 9. Divergent Outcomes of Land Rights Claims of Indigenous Peoples in the United States

Land is one of the most important, valuable, and versatile assets in human endeavor. The ability of a party to own land enhances its opportunity for economic growth and wealth acquisition in many ways including through resource extraction, agricultural production, and as use for collateral to finance economic projects. Land also provides a physical place for people to exist momentarily or over time, the latter affording the opportunity for the development of cultural identity and the accumulation of a people’s history. The value of land, therefore, can be evaluated in many ways and its market value represents only a portion of its meaning to the people who inhabit it.

Wayne Edwards

Chapter 10. Punitive (and) Pain-and-Suffering Damages in Brazil

Pain-and-suffering damages have become one of the cornerstones of the modern regulation of liability. The functions they should perform, however, have been controversial since their explicit recognition in the seventeenth and eighteenth centuries. Once completely set aside from the exemplary, vindictive, or punitory damages of the early English law,1 compensations for pain and suffering slowly got closer (again) to punitive roles, both in theory and in practice.2

Osny da Silva Filho


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