The Legal Analyst: A Toolkit for Thinking about the Law

By Ward Farnsworth | Go to book overview

PREFACE

This book is a collection of tools for thinking about legal questions. It attempts to gather the most interesting ideas one learns about in law school—or should learn, or might wish to have learned—and explain them in plain language with lots of examples of how they work. The result is a kind of user’s guide meant to be helpful to a wide range of people: law students, lawyers, scholars, and anyone else with an interest in the legal system. An alternative title for the book, Thinking Like a Law Professor, might have been more descriptive but was rejected by the focus groups as ambiguous, as it might be construed as a threat rather than a promise.

That is a short account of this book and its purpose. A more detailed one has to begin with the way law usually is taught, which often seems to me to be upside down. There are, in general, two sorts of things one learns at a law school. First, there are lots of legal rules—principles that tell you whether a contract is valid, for example, or when people have to pay for accidents they cause, or what the difference is between murder and manslaughter. Second, there are tools for thinking about legal problems—ideas such as the prisoner’s dilemma, or the differences between rules and standards, or the notion of a baseline problem, or the problem of hindsight bias. Some of them are old matters of jurisprudence; a larger share have been imported into the law schools more recently from other disciplines, such as economics or psychology. In either event, these tools for thought are by far the more interesting, useful, and fun part of a legal education. They enable you to see more deeply into all sorts of questions, old and new, and say better, more penetrating things about them.

The problem is that law schools generally don’t teach those tools carefully or systematically. One might imagine it otherwise: law school courses could be organized around tools rather than legal subjects, so that in the first year everyone would take a course on the prisoner’s dilemma and other ideas from game theory, a little course on rules and standards, a course on cognitive psychology, and so on, and in each of those classes one would learn, along the way, a bit about contract law, a bit about tort law, and a bit about all the other major subjects. But instead law school is carved up the other way around: by legal topics, not by tools. There

-vii-

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The Legal Analyst: A Toolkit for Thinking about the Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Acknowledgments xi
  • Part I - Incentives 1
  • 1 - Ex Ante and Ex Post 3
  • 2 - The Idea of Efficiency 13
  • 3 - Thinking at the Margin 24
  • 4 - The Single Owner 37
  • 5 - The Least Cost Avoider 47
  • 6 - Administrative Cost 57
  • 7 - Rents 66
  • 8 - The Coase Theorem 75
  • Part II - Trust, Cooperation, and Other Problems for Multiple Players 85
  • 9 - Agency with Eric Posner 87
  • 10 - The Prisoner's Dilemma 100
  • 11 - Public Goods 109
  • 12 - The Stag Hunt 117
  • 13 - Chicken 126
  • 14 - Cascades 136
  • 15 - Voting Paradoxes 144
  • 16 - Suppressed Markets with Saul Levmore 152
  • Part III - Jurisprudence 161
  • 17 - Rules and Standards 163
  • 18 - Slippery Slopes with Eugene Volokh 172
  • 19 - Acoustic Separation 182
  • 20 - Property Rules and Liability Rules 188
  • 21 - Baselines 198
  • Part IV - Psychology 207
  • 22 - Willingness to Pay and Willingness to Accept- The Endowment Effect and Kindred Ideas 209
  • 23 - Hindsight Bias 218
  • 24 - Framing Effects 224
  • 25 - Anchoring 230
  • 26 - Self-Serving Bias, with a Note on Attribution Error 237
  • Part V - Problems of Proof 247
  • 27 - Acoustic Separation 249
  • 28 - Standards of Proof 257
  • 29 - The Product Rule 273
  • 30 - The Base Rate 281
  • 31 - Value and Markets 294
  • Notes 305
  • Author Index 329
  • Subject Index 335
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