The role of economic incentives in the development of legal doctrine
Abstract
Economic principles and rhetoric have become important sources driving the
common law. Courts and scholars have invoked economics to bolster the legitimacy of
legal principles considered settled after centuries of case law. They have cited
economic scholarship in a manner that gives it authority equal to legal scholarship as a
mode of judicial reasoning. Most significantly, economics has had a much stronger
influence in crafting better rules, overturning rules that fail more rigorous scrutiny, and
evolving rules that help the courts function more efficiently. This dissertation devises
analytical techniques that accurately identify complex economic phenomena and adapts
these techniques to formulate rules that are well suited to the capabilities of the courts.
One part defines a specific class of exclusionary conduct, demonstrates conditions
under which such conduct may be anticompetitive, and provides a framework for
determining when the conduct violates the antitrust laws. Another part illustrates the
interaction between developments in the economics that underlies exclusive dealing
doctrine and the evolution of that doctrine; this part shows how economics can facilitate
the development of better doctrine. Another part uses economic tools to provide an
approach for analyzing the unintended distortionary effects of liability rules under laws
and conventions governing the transportation of goods or cargo; this part proposes an
approach for improving these rules.
Department
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