Wednesday, November 28, 2007

Question for the field

A question, with many parts, for the readership and authorship (and thus I get to claim I only asked you one thing): What do you think of Judge Richard Posner? Specifically, do you find his law and ecomonics rationale convincing, merely theoretical, or perverse even if valid? That is, can an economic analysis of law decide real cases effectively? Is it merely a theory for understanding broad trends in the law and in people's behavior in light of their perceptions of the economic consequences of legal rules? Is it valid as a way to understand human relations but immoral for reducing competing interests to economic relations?

For my own part, I wonder exactly how far it can be taken with any real utility. At the extreme, we construct a spreadsheet, clients and their attorneys submit suggested data for that spreadsheet (a column for emotional distress, a constant [Posner's constant! why not?] for determining by what factor to reduce claims of bad faith), and statistics experts carefully calculate the most accurate values for each cell and determine the correct judicial result (that's cell AA87, "Net liability" which itself is a function determined by, inter alia, cell Z76, which has two possible values ["yes" or "no"] and corresponds in our primitive understanding to the concept of whether the defendant is liable).

Right, right, not even Posner is suggesting this, much less doing it. Still, when do the impossible-to-quantify factors confuse an attempt at mathematical manipulation of legal benefits and harms to the critical point? Has Posner stepped over the line? A lot? Often?


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