The role of economic incentives in the development of legal doctrine

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Date

2004

Authors

Rathbun, Douglas Bartram

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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.

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