Virginia Law Review

Good Economics. Bad Law

Author(s): James M. Buchanan
Source: Virginia Law Review, Vol. 60, No. 3 (Mar., 1974), pp. 483-492
Published by: Virginia Law Review
Stable URL: http://www.jstor.org/stable/1072438
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GOOD ECONOMICS-BAD LAW

JamesM. Buchanan*

NE of themostinteresting
in American
developments
higheredu-

cation over the past decade has been the emergingrecognition

by lawyersthat an understanding
of elementaryeconomic principles
is a vitalcomponentin theirprofessional
equipment.This recognition
has promptedthe currentquest by law schools for economistsclose
enoughto the institutional
worldto offerpracticalassistance.The Law
School of the Universityof Chicago occupies a unique place in this
development.Its heritageof residenteconomists-HenrySimons,Aaron
Director,Ronald Coase (along with theireconomicsdepartmentcolleagues,notablyGeorge Stiglerand Gary Becker)-has begun to pay
dividends,and Chicago-trainedlawyer-economists-Gordon
Tullock,
Henry Manne,RichardPosner-havebeen in the forefront
of the laweconomicsintersection.
Posner'sEconomicAnoalysis
of Law' is thelatest
and mostcomprehensive
attemptto marrythesetwo sometimes
contrary
approachesto social interaction.
In assessingPosner'sbook,I have conductedthe followingmentalexperiment.I assumethatPosner'sbook is widelyadoptedas textualmaterialin first-year
law school courses. (This is the author'spurpose,
and "textbookishness"
sometimes
detractsfromtheargument.)I assume,
further,
that the studentsare well-motivated,
diligent,and intelligent,
and thatthey permanently
retainthe elementaryeconomic principles
thatPosner teaches.2What will be the effectson those lawyerswho
laterfindthemselves
in positionsof decision-making
power,as judges,as
*University Professor of Economics, Virginia Polytechnic Institute and State University; General Director, Center for Study of Public Choice. B.S., 1940, Middle
Tennessee State College; M.A., 1941, University of Tennessee; Ph.D., 1948, University
of Chicago. The author is indebted to Winston Bush, Gordon Tullock, and Richard
Wagner for helpfulsuggestions.
1 (1973) [hereinaftercited as POSNER].
2 Empirical studies concerning post-universityretention of
economic principles suggest that this is, indeed, a heroic assumption. These studies have suggested that exposure to basic economics has little, if any, discernible effect on attitudes toward important economic issues only a few years after the learning experience. Perhaps it is
plausible to suggest that budding young lawyers would be more professionallymotivated.
And, in addition, the elementary economics that they would learn from Posner would
be superior in content to that taught in the average university course in the subject.

[483 ]

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484

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[Vol. 60:483

legislators,as administrators,
as legal scholarsand educatorswho will
themselveswriteotherbooks and trainstillotherlawyers?
The resultsof my mentalexperimentmay be summarizedbriefly.
Consideredon a case-by-casebasis, legal decisionswould indeed be
improvedif thosechargedwith authorityshouldbe made cognizantof
economic principles.By accepted pragmatic criteria,the intrusionof
economicsinto law gets,and deserves,high marks. Good economics,
whichis whatPosnerteaches,is betterthanno economics
Chicago-style,
or the bad economicspickedup all too readilyfromthe charlatansand
the journalistson the fringesof the academy.
But the applicationof good economics (or bad) takes place within
a legal setting.If thissettingis consideredinvariant,
pragmaticcriteria
are, of course,controlling.If, however,broaderphilosophicalcriteria
are introduced,the law, itself,mustbe evaluated,and good economics
appliedwithina bad or misguidedconceptionof legal processneed not
promotethe structural,proceduralchangesthat may be urgentlyrequired. It is in thisrespectthatPosner'swork failsmy test. The jurisprudentialsettingor frameworkwithin which his whole economic
analysisof law is placed does notseemto havebeen criticallyexamined.
I shall try to defendthis "good economics-bad law" themein the
two sectionsthatfollow. In so doing,I am, of course,rewritingall of
therulesof thereviewinggame. As a professionally
trainedeconomist,
who sharesa Chicagoheritage(pre-empirical),
theseruleswould dictate
primarycriticalattentionon the economic analysis,per se, with acquiescence on the embodiedconceptionof legal process,presumably
on the groundsthatthe latteris best leftfor the lawyersto criticize.
But law is fartoo importantto be leftto the lawyers,especiallysince
lawyerscome increasingly
to manthe corridorsof Leviathan.
I.
Posner'sprocedureis to apply hard-nosed,and often quite sophisticated,price theoryto a long seriesof topics,all of which fallwithin
the legal lexicon. Chaptersare devotedto property,contracts,crimes
and torts,monopoly,antitrust,labor, public utilities,price controls,
corporations,
capital markets,incomedistribution,
taxes,poverty,federalism,and racialdiscrimination,
alongwithlessspecifically
"economic"
subject matter. Posner's overridingpurpose is to demonstratethat
economicprinciplescan offerguidelinesforthe legal resolutionof conflictingclaims,for the enactmentof new legislation,and for the in-

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1974]

Law and Economics

485

terpretation
of existingstatutes.Why does economicsoffersuch valuable assistancehere,aside fromthe trivialacknowledgment
thatmore
information
is alwaysbetterthanless? At thispointcare mustbe taken
to distinguish
betweenpositiveeconomicanalysisand the advancement
of the efficiency
normthatis oftenassociatedwith thisanalysis. The
latter,whichinvolvesan explicitvalue judgment,need not accompany
the former.Posnerdoes not fullyappreciatethispotentialseparability,
and the efficiency
criterionis too enthusiastically
endorsed. Indeed,he
is forcedto justifyabrogationof this criteriononly by resortto an
indirectreinstatement.
For ordinarycrimes,theftand rape forexample,
he is somewhatreluctantlywillingto allow unconditionallegal deterrence on the groundsthat freelynegotiatedexchangescould emerge
voluntarily
in such cases if,in fact,the value to the "seller"fallsbelow
thatvalue to the "buyer." That is to say,if the benefitssecuredby the
potentialrapistexceedthelossessuffered
by thepotentialvictim,mutual
gains fromexchangeshould exist,and such tradesshould take place.
Posneris trappedintothisargument,
whichto me approachesabsurdity,
because of his insistenceon the relativelyunlimitedapplicabilityof
the maximumvalue or efficiencycriterion. The very bringingof
criminalchargesindicatesa departurefrommaximumvalue, and, for
thisreason,suggeststhe necessityof somereplacement
of the maximum
value criterionfor legal resolution.
Despite the questionablenormativestatusassignedto maximumvalue
or efficiency,
Posner'sresultscan be interpreted
in such a way as to
make them more generallyacceptable. Maximumvalue need not be
adoptedas the end objective. It may,instead,be assessedas an instrumentto be used in attainingotherobjectives. It may be shown to be
consistentwith preceptsof social order,with observablelegality,precepts that are more in keeping with law's functionalrole. Posner
recognizesthismoregeneralconceptionwhen he states:
If thelaw failsto allocateresponsibilities
betweenthepartiesin such
a way as to maximize
value,thepartieswill,by an additional
and not
costlesstransaction,
nullifythelegalallocation.8
In somewhatbroaderand less emphaticterms,this can be interpreted
as a lawyer'sstatementof the most basic of all economic principles:
When mutualgains are present,partieswill be motivatedto initiate
3 POSNER 99.

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[Vol. 60:483

tradeswitha view to capturingthe potentiallyrealizablesurplusvalue.

Attemptsto shutoffor to forestalltradewhen mutualityof gain exists
encouragecostly evasions. The very legalityof societyitselfmay be
seriouslyeroded if those who make collectivedecisionsfail to understandthiselementary
consequenceof the economists'teaching.
An examplelies close at hand, one to which Posner's analysisand
approach could be readily applied. Faced with a disruptionin the
normalchannelsof fuelssupply,and especiallyin the face of a rapidly
increasingdemandfor energy,manyAmericanpoliticiansin late 1973
(most of whom are lawyers) commencedto talk seriouslyabout the
prospectsof imposingmandatorycontrolsovertheallocationof supplies
and about the subsequentnecessityfor rationingheatingoil and gasoline amongpotentialdemanders.The chaos thatany full-scaleattempt
to introducesuch "solutions"mustcreatecould be understoodand predictedby the decision-maker
trainedon Posner'sbook who retainedhis
critical faculties. In predictingthe stressput on social order by a
regimeof controlledpricesand rationedallocations,thislawyer (be he
judge,legislator,bureaucrat,or presidential
adviser),need not place an
overridingvalue on economicefficiency
per se. But his elementary
unof positiveeconomicanalysiswould cause himto recognize
derstanding
morefullythe genuinesocial costsof any such policy.
With such knowledge,the decision-maker
should be motivatedto
searchfor and to supportinstitutional
alternatives
which generateless
social tension,less evasion of postulatedstandardsof conduct, more
generaladherenceto legalnorms.Law and legislationthatis thoroughly
informedby good economicswill be based on an understanding
of the
market'sfunctionin maintainingsocial order,which is not primarily
thatof insuringefficiency,
or maximizing
value,as measuredin marketdeterminedprices. (The efficiency
normmay, of course,assumesecondary importancein its own right.) The marketeconomy'ssociopoliticalfunctionis thatof mninimizing
the necessityof resorting
to internalethicalconstraints
on humanbehaviorand/orexternallegal-governmental-political
restrictions.To the extentthat men are allowed
freelyto trade,conceived in the broadestpossiblesense of this term,
thereis littleneed forthe preacheror the administrative
authority.In
the examplenoted, if marketpricingis allowed, and encouraged,to
rationlimitedfuel suppliesamong potentialusers,the success of exhortationsto voluntarybehavioraimed at meeting"social needs" need
not be of criticalimportance.Nor, when such exhortations
fail,need

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1974]

Law andEconomics

487

they be replaced by overt legal restrictions

on behavior,restrictions
which will inviteevasion,and which will serve to penalize the lawabidingand the noncleverlaw violatorswhile benefiting
thosewho are
successfulin accomplishingmutually-gainful
"trades"despitethe artificialinstitutional
barriers.
The distributional
consequencesof puremarketpricingin the face of
unanticipated
reductionsin normalsuppliesof a vital commoditymay
be deemed undesirable;the efficiencyguaranteedby marketpricing
need not be the only criterionforpolicy. Good economicswill, however,offerguidelineseven to the lawyer-legislator
who places distributionalequityveryhighon hispersonalvalue scale. He mayopt in favor
of legislationthatwould introducewhatis essentially
a doublecurrency
in theallocationof limitedsupplies;individuals
mightbe assignedspecific
rationpoints (althoughthe criterafor determining
the allocationmust
be largelyarbitrary).So long as theserationpointsmay themselves
be
freelytraded,and marketpricesforthemestablished,
major social disruptionmay be avoided. Efficiency
in allocationwill be insuredsimultaneouslywith the attainmentof any distributive
resultthat may be
desiredby the decision-makers.
I havediscussedthefuelsallocationproblembothforitscurrentpolicy
relevanceand for an illustration
of how good economicsmightgreatly
facilitatethe makingof public decisions,independently
of the choice
of ultimatesocial objectives.Posner'sbook would providethe lawyercum-politician
withthe basic economicanalysisrequiredhere,although
his attemptto be inclusivein his arrayof applicationstendsto distract
attentionaway fromthe centralprinciplethatis embodiedalmostuniversally.This is not to suggestthatPosner'sbook will fullysubstitute
formorerigorousand carefuleconomicstexts,and thatthelawyerwho
is trainedon thisbook need not seek out the advice and counselof the
professionally
trainedeconomist. Posner does make errors,most of
which are relativelyminorand not worthnotinghere. In addition,his
discussionof specifictopicsis sometimes
unsophisticated
(e.g., taxation).
There is one ambiguitythat warrantscorrection.Posner appears to
confuse the productivityof resourcesin securing and maintaining
monopolypositions,resourcesdevotedto "monopolizing,"
withtheproductivityof resourcesin producingoutputsin industriesthat are monopolized. The social productivity
of the firstof these investments
is
clearly negative;the social productivityof the second is higherthan
thatof comparableresourcesin competitiveindustries.

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[Vol. 60:483

A more importantlimitationis that imposedby the strictChicago

economicsthat Posner espouses. At the outset of his book4 he dismissesmodernwelfareeconomics,which he calls "'Pareto optimality'
and the like,"as vocabularyand jargon,somethingto be carefullydistinguishedfrom"positiveeconomic analysis." But it is preciselythe
problemsposed in modernwelfareeconomicsthatforcethe economist
to come to gripswiththe basic issuesin politicaland legal philosophy.
As the discussionin Part II will suggest,a failureto appreciatethese
issuesis the major criticismto be levied againstthe book as a whole,
somethingwhich mightwell have been avoided by a willingnessto
move beyond the provincialism
of post-Knightian
Chicago economics
into the sometimesmurkywatersof "Paretooptimalityand the like."
II.
There is a normative
theoryof law in Posner'sbook,overand beyond
the series of economic applications.Posner's interpretation
of legal
historysuggeststhatthe commonlaw, as it has developed,has been at
leastindirectly
guidedby theefficiency
criterion
of orthodoxeconomists,
a criterionwhichassumesspecialsignificance
in Posner'sscale of values,
as I have previouslynoted. By implication,
therefore,
judge-madecommon law is superiorto legislation,the decisionsthat emergefromthe
activitiesof politicans. This theorybears an apparentresemblanceto
that advanced by the late Bruno Leoni,5whom Posner does not cite.
Leoni arguedpersuasively
forthesuperiority
of "law" over"legislation,"
developingin the processthe interesting
analogybetweenthe structure
of law, the legal order,thatemergesfromthe separatedecision-making
of independentjudges (governedby precedent,but withoutthe uniformityimposedby any "supreme"court) and the spontaneouseconomic order that emergesfromthe separatedecision-making
of independentdemandersand suppliers,each of whomactson the basisof the
limitedinformation
set thathe confronts.The result,in both cases,is
an orderwilled by no singledecision-maker.
Leoni's distinction
betweenlaw and legislationis not, however,that
which is suggestedin Posner'swork. Leoni's categorizationgrew out
of a profoundphilosophically-based
conservatism
groundedon a sharp
functionaldifferentiation.
The object of the never-ending
search by
independently-acting
and loosely-coordinatedjudges is to find "the
4
5

Id. at x.
B. LEONI,

FREEDOM

AND THE LAW

(1961).

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1974]

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489

law," to locate and to redefinethe structureof individualrights,not

ab initio,but in existingsocial-institutional
The working
arrangements.
of "law," as an activity,is not guided by nor should it be guided by
explicitcriteriafor "social improvement."Law, in thisvision,is a stabilizinginstitution
withinwhichinprovidingthe necessaryframework
dividualscan plantheirown affairs
and withminimalexternal
predictably
interferences.
To Leoni, legislationis functionallydifferent
in thatits
verypurposemustbe one of securingor implementing
explicitsocial or
collectiveobjectives. This is the processthroughwhich politicallyorganizedgroupsof personssupply "public goods" to themselves.
One need not shareLeoni's basic distrustof politiciansand ordinary
politicalprocessesto appreciatethe relevanceof the categoricaldistinctionthat he made. Nonetheless,an absence of this appreciation
marsPosner'swork,with the consequencethatthe impliedtheoryof
law becomesquitedifferent
fromthatofLeoni,whichI havesummarized
briefly.In his arrayof economicapplications,Posner appearsto offer
potentialadvice and counselto futurejudges and legislatorsalike. But
lawyersfindingthemselvesin the role of juristsshould act differently
from lawyers-cum-legislators.
The divergentchoice settingssuggest
thatcriteriafor"good" decisionswould be identicalonlyby accident.
For the legislator,the solid economicswhich Posnerteachescan be
of greatassistance.Regardlessof social objectives,the "public goods"
thathe conceiveshimselfto be promotingor producingthroughnew
or amendedlegislation,knowledgeof the economiceffectsof alternative proposals will be helpful in constructingpotentiallyworkable
schemesfor change.
For the jurist,thereshouldbe relativelylittlecomparablevalueof the
economicsinput,save in thepragmaticsensenotedearlierand elaborated
below. Faced with the necessityof resolvinga conflictamong parties
over the appropriatedelineationof rights,shouldthe judge invokethe
efficiency
criterionof the economist,eitherdirectlyor in an instrumentalsense? If he is to invokeany extra-legalcriteria,a case mightbe
made out forthe economic,as I have triedto do in Part I of thispaper.
But is it not "bad law" to suggestthatthe judge be guidedin his decision-making
by criteriaotherthanthoseofferedin the existinginstitutionalsettingthathe confronts?Precedent,custom,tradition,
expected
ways of doing things,predictedpatternsof behavior-theseintra-legal
criteriaprovideample searchinggroundforthe imaginativejuristeven
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[Vol. 60:483

in hard cases, criteriathat are wholly consistentwith the functional

role of the jurist.
An examplemay be helpful. Monopoly is a recognizedsource of
in an economy,withrelativelyfew offsetting
social virtues.
inefficiency
Informedby thisknowledge,it becomesappropriatefor the legislator
to consider,and possiblyto support,antimonopoly
statutes.If he is successfulin the complex set of politicalnegotiationsthat characterizes
representative
suchstatutesmay finallybe enacted
legislativeassemblies,
intolaw. And the law so enactedthatemergesfroma legislaturecomposed of economicallysophisticated
will be "better"
lawyer-politicians
than that which emergesfrom a legislaturethat is peopled by unsophisticatedlawyer-politicians.
Suppose now, however,that no antimonopolystatuteexistsand thatnone has ever existed. A disgruntled
consumer-purchaser
bringssuit againsta producing-selling
firmthatis
allegedto have attaineda monopolyposition,an allegationthatis factually supportable,althoughno overt predatoryaction vis-a-visother
firms,existingor potential,is in evidence Should the judge, informed
by economicprinciple,effectively
changethebasiclaw so as to promote
efficiency?Posnerwould apparentlyhave the judge outlaw monopoly
in such a situation6on the groundsthatthe transactionscosts barrier
would inhibitthe effectiveorganizationof potentialpurchaserswho
could, if organized,strikea bargainwith the monopolyfirm.The existenceof major transactions
costs thresholds
may be acknowledgedin
such cases, however,withoutthe justification
of explicitjudicial intrusioninto the legislativeprocess. The situationcalls for legislative
action,the role designedforand fulfilledby politicianswho putatively
representthe interestsof all partiesin the community,potentialconsumersand producersalike.7 It seemsself-evident
to me thatthe judge
shouldnot changethe basic law because,in such behavior,he would be
explicitlyabandoninghisrole of juristforthatof legislator.He would
be "makinglaw," and regardless
of thecriteriawhichguidehisdecisions,
his actionis unboundedby the complexpull and haul of representation
among separateinterests,the very centerof democraticprocess. In
sayingthatthe juristshouldenforceexistinglaw ratherthanenactnew
legislation,I am, of course,aware of the absenceof any firmdividing
line betweenthesein any empiricalor descriptive
sense. I also recognize
6 See POSNER

20-30.
an elaborationof my position in the contextof Coase-like examples,see
Buchanan,The Institutional
Structureof Externality,14 PUBLIC CHoicE 69 (1973).
7 For

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thatthe hierarchicalstructureof the Americancourt systempromotes

ratherthan retardsjudicial intrusioninto legislativeprocess. My emphasisis on the desirability
of keepingthe two conceptuallydistinct,
despitethe practicaldifficulties
thatmay be confronted.
Posner'sfailureto make the vitaldistinction
Unfortunately,
between
thedifferent
functionalrolesthatlawyersoftenoccupy is notsomething
uniquelyattributable
to him. Relativelyfewscholarsin our law schools
and our universities,
and stillfewerpersonsamongworkingpoliticians
and jurists,seemto understandthe basic structureof constitutional
democracy. This structureinvolvesa conceptualseparationbetween (1)
the constitution,
which definesthe rightsof personsand groupsto do
thingsand definesthe rulesunderwhich collectivedecisionsare to be
made, (2) theinstitutions
of "thelaw," whichadjudicatetheconflicting
claimsmade withinthisset of rightsand rules,and (3) the collective
decision-making
processof the ordinarylegislativevariety,which presumablypromotes"public good," but againwithinthe ruleslaid down
in the constitution. The contractualprocesseswhich ideally characterize (1) and (3), both of which may be interpreted
as "legislation,"
despitethe differing
elementsof structure,
should,as a matterof course,
satisfythe criterionof efficiency
or maximumvalue appropriately
defined. The problemariseswhen the jurist,abandoninghis role in (2),
attemptsto intervenein eitherthe firstor thirdprocess,eitherin constitution-making
or in producing"public goods."
Recognitionof this gives me pause in what could be an otherwise
unqualifiedendorsement
of the developinginterfacebetweenlaw and
economics. If lawyers,and law schools,seek to introducemore economic theoryinto theirtrainingin order to become more informed
potentiallegislatorsand advisorsto legislators,
my supportremainsunqualifiedand enthusiastic.If,however,theyseekto becomeand to train
potentialjuristswho are instructedto have no qualmsabout legislating
forus all, thepragmaticimprovements
thatresultmightforestallrather
thanhastenthe changesin jurisprudential
attitudesthatare essentialfor
a returnto operativeconstitutional
democracy.My mentalexperiment
leads me to thinkaboutthepotentialexcessesof a "Posnercourt"in the
8 This distinction is elaborated in
CONSENT:

LOGICArl

J. BUCHANAN & G.

TULLOCK,

THE

CALCULUS

OF

(1962). In a forthcoming book, I examine more specifically the necessity of role separation between
those who act for the "Protective State," the jurists, and those who act on behalf
of the "Productive State," the legislators. See J. BUCHANAN, THE LIMITS OF LIBERTY:
BETWEEN ANARCHY AND LEVIA1HFAN (1974) (to be published).
FOUNDATIONS

OF

CONSTITUTIONAi

DEMOCRACY

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1980sand 1990s,guidedby itsextra-legalcriterionof "maximumvalue."

Would such a courtbe comparableto the WarrenCourtin thegeneration of social unrestand disorder?Neither"maximumvalue" nor "social justice" is acceptable as a criterionfor judicial decision because
both are derivedextra-legally;that is, independentlyof the effective
constitutional
rulesin being,rulesthatmaybe modifiedonly at a different and higherstage of social decision-making.The opportunitycosts
of introducingmoresophisticated
economicsinto legal trainingmay be
measuredin the lost opportunities
for attaininga betterappreciation
of fundamental
constitutional
precepts.On balance,"good politicaland
legal philosophy"would surelyhold its own against"good economics,"
if indeedthiscould be the choice of alternatives.Unfortunately,
given
thatthe mind-setin modernacademiaprobablyprecludesthe teaching
of "good legal philosophy"anywhere,the "good economics,"which
tenuouslyholdson evenifin isolationfrommainstream
ideology,should
dominatethealternatives
in any practicalcurriculumdecision.

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