Tarello Institute for Legal Philosophy

How can legal and economic thinking relate meaningfully to each other? Do judges ever use economics to interpret the law, establish facts, manage their caseload? What economists think about legal reasoning? If you are interested in these questions and more, Economics in Legal Reasoning is the book for you! Edited by Péter Cserne and Fabrizio Esposito,the book includes 9 chapters, introduction included. In Chapter 2, Damiano Canale and Giovanni Tuzet, give an overview of what legal reasoning is about. In Chapter 3, Péter Cserne explains how economists have studied legal reasoning so far. Chapter 4, by Pavlína Hubková, focuses on four ways in which economics matters for judicial reasoning. In Chapter 5, Fernando Gómez Pomar offers a sceptical view about the future of economics in legal reasoning in Europe, based on deeply engrained feature of European legal thinking. Chapter 6 and 7, by Jan Broulík and Nicola Giocoli respectively, focus on the use of economics in fact-finding: Jan explains what forensic economics is; Nicola discusses how economic experts in US antitrust litigation have struggled to pass the Daubert test. In the last part of the book, Felipe Figueroa Zimmermann and Fabrizio Esposito offer new perspectives on the role of economics in legal reasoning. Felipe relies on legal realism to reject the reduction of legal to economic reasoning and to call for methodological reflexivity by both economists and lawyers. Fabrizio, inspired by Damiano and Giovanni’s legal inferentialism, explains how to make the economic concepts used in legal reasoning explicit and the benefits thereof for both lawyers and economists.

Economics in Legal Reasoning is already available as an eBook and print copy can be pre-ordered, here.

The editors and authors would love a review. If you are interested, please visit this page on Palgrave’s website.

Praise for Economics in Legal Reasoning

Brian H. Bix, Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota:
“In Economics in Legal Reasoning, Péter Cserne and Fabrizio Esposito have brought together important new works which will bolster the dialogue between economics scholars, legal scholars, and legal practitioners on economics in legal reasoning, a topic that has not received enough attention so far. It would be beneficial reading to scholars, lawyers, and judges everywhere.”

Anthony Ogus, Universities of Manchester and Rotterdam:
“A fascinating collection of essays on the contribution which economics can make to legal reasoning. The two extremes are shunned: that legal reasoning is necessarily self-contained; and that economic methodology can invariably provide a litmus test of what is legally appropriate. A more nuanced appraisal of the relationship between the two discourses is explored, offering a wealth of insights for lawyers and economists alike.”

Table of Contents, with Abstracts

1. Introduction by Péter Cserne and Fabrizio Esposito
The Introduction puts the content of the book into perspective, summarizes its aims, and gives an overview of the argument. The relative neglect of the topic of economics in legal (especially judicial) reasoning stems in particular from the opposition of two argumentative styles. Despite their differences, the commonalities between legal and economic reasoning constitute the stepping stone for investigating the role of economics in legal reasoning.

PART I. Foundations

Ch. 2. What Is Legal Reasoning About: A Jurisprudential Account by Damiano Canale and Giovanni Tuzet
Legal reasoning is about the creation, application, and extinction of legal norms (rules, standards, or principles). Legislators and lawmakers argue about the creation and extinction of norms, or, more technically, about the enactment and abrogation of norms by the competent legal authorities. Judges and other officials argue about the application of norms, on the basis of the interpretation of the relevant legal texts. In the judicial context, in particular, participants make arguments about the relevant facts and the application of law to these facts. Legal arguments divide into evidentiary and interpretive ones, where the former point at the reconstruction of what happened and the latter point at the ways in which legal texts can be interpreted. Both are necessary in the application of law.

Ch. 3. Economic Approaches to Legal Reasoning: An Overview by Péter Cserne
Economic analysis has contributed to a better understanding and a better functioning of law at different levels of generality. As far as legal reasoning is concerned, these contributions fall into two large groups. Economics in legal reasoning concerns arguments about the purposes and consequences of legal rules and principles that are acceptable in court as legally relevant, including (1) predictions of the likely consequences of alternative legal decisions; (2) technical normative arguments about the best means to achieve a legally determined purpose; and (3) welfarist normative arguments about the desirable goals of specific laws. Economics of legal reasoning, in turn, includes (1) explanatory models of legal processes in terms of rational activity of individuals, corporate entities as well as legal officials, and (2) normative proposals concerning the design of legal processes, that is the structure of law as institutional practice.

PART II. Economics and Legal Interpretation

Ch. 4. Economics in Judicial Decision-Making: Four Types of Situations Where Judges May Apply Economics by Pavlína Hubková
The chapter is based on the premise that economics may present epistemic difficulties for judges. It offers to conceptualize situations where judges may or have to apply economic thinking. The chapter focuses on four model categories where judges intentionally or unintentionally use economic considerations and economic arguments, or where there is a place for an economic consideration to be employed: issue of procedural economy and efficient management in everyday decision-making, abstract economic reasoning in explicitly economic fields of law, economic analysis of facts, and awareness of different economic theories that may have an impact on the judicial decision-making.

Ch. 5. Characterizing Economic and Legal Approaches to the Regulation of Market Interactions by Fernando Gómez Pomar
This chapter provides an overview of how EU private law (and national European private laws) and, more specifically, contract and consumer law do not see eye to eye with economic—and law and economics—views over those kinds of interactions. With some illustrations from ECJ case law as motivating the study, it is argued that the divergent approaches reflect a deep divide between the intellectual goals and perspectives in both disciplines. This is to be lamented, since a greater openness by legal theory and legal academics toward economic ways of looking at market interactions would greatly enrich and refine the functioning of legal systems.

PART III. Economics and Fact-Finding

Ch. 6. What Is Forensic Economics? by Jan Broulík
This chapter provides an overview of forensic economics by discussing four questions about its domain. The first question asks whether forensic economics is a practical or academic enterprise, or both. The second one concerns the types of legal decisions that forensic economics informs, including three separate stages of law enforcement and the distinction between questions of fact and law. The third question relates to the fields of law to which forensic economics applies with special attention to tort damages and antitrust. And the fourth one considers the position of the people who carry out the forensic-economic analyses outside of or within an enforcement body.

Ch. 7. Why Do US Judges Reject Antitrust Experts? by Nicola Giocoli
Economists regularly appear as expert witnesses in antitrust litigations. The chapter analyzes how their models and methodologies have performed vis-à-vis the standards of relevance and reliability affirmed by the US Supreme Court in Daubert v. Merrell Dow Pharm. Inc. (1993). New data are provided on the number of antitrust economists whose expert testimonies have not survived a Daubert challenge. Explanations for such a poor record range from the judges’ insufficient economic literacy to skewed procedural rules, from the high specificity of antitrust cases to widespread identification problems in economic models.

PART IV. New Perspectives

Ch. 8. Fostering the Autonomy of Legal Reasoning Through Legal Realism by Felipe Figueroa Zimmermann
This chapter explains why the dominant pattern of disciplinary interaction between law and economics has fostered a general trend of reducing legal reasoning to economic reasoning. After describing the pattern of interaction between both disciplines through the example of property rights (Sect. 8.2) and linking it to the debate on reductionism in philosophy of science (Sect. 8.3), the chapter proposes a strategy for salvaging the autonomy of legal reasoning by increasing reflexivity through a version of legal realism inspired by the work of Otto Neurath (Sect. 8.4).

Ch. 9. Reverse Engineering Legal Reasoning by Fabrizio Esposito
This chapter describes a novel and valuable approach to the relationship between economic analysis and the law called “reverse engineering legal reasoning”. Social engineering conceives of the law as a means to social ends and of the economist as the technician studying the extent to which laws are fit for the purpose. Building on this idea, reverse engineering legal reasoning is a way to identify economic concepts that describe—are coherent with or fit—the content of legal reasoning. To do so, alternative economic hypotheses about the content of legal reasoning are formulated. On these grounds, the degree of coherence between economic concepts and legal reasoning can be made explicit. Reverse engineering legal reasoning extends the focus of positive economic analysis from the effects of the law to its content. It is useful for economists to suggest ways to increase the effectiveness of the legal system; to contribute to its functioning; as source of evidence to test economic assumptions; and to solve disagreements among economists, especially in relation to value choices.