The Pursuit of Justice: Law and Economics of Legal Institutions
DeBow, Michael, Freeman
The Pursuit of Justice: Law and Economics of Legal Institutions edited by Edward J. López Palgrave Macmillan * 2010 * 316 pages * $30.00 paperback; $90.00 hardcover
Reviewed by Michael DeBow
Public Choice analysis is the application of economic reasoning - principally the idea that human action is primarily self-interested - to questions drawn from politics and government. It was famously described by James Buchanan as "politics without romance." To date most Public Choice research has focused on the behavior of political actors. Less attention has been paid to the behavior of (arguably) less political figures, such as judges, juries, prosecutors, and police. As a result Public Choice has delivered on the promise of "politics without romance" but has not done as much to show us "law without romance." The Pursuit of Justice addresses this shortcoming by demonstrating how Public Choice theory can help us better understand our law and legal institutions.
In his introductory essay editor Edward López states the core idea advanced in the book: "[I]f we want to understand why the legal system sometimes fails to perform up to our ideals and expectations we must analyze the incentives available to actors in the legal arena and the institutions that set the 'rules of the game.'" This focus raises the question of whether Public Choice analysis differs from the "economic analysis of law" advanced by Ronald Coase, Richard Posner, and others. López maintains that while "there is little fundamental difference between" the two on methodological grounds, there seems to be a difference "in the character of the reforms they recommend." According to López, Public Choice emphasizes constraining political actors while the economic analysis of law emphasizes "arranging institutions to minimize transactions costs."
Benjamin Barton's chapter on the "lawyer-judge hypothesis" - which might be the marquee contribution to this volume - argues that "if there is a clear advantage or disadvantage to the legal profession in any given question of law, judges will choose the route that benefits the profession as a whole." Barton offers a number of examples drawn from numerous areas of the law that support the hypothesis. Charles Keckler's outline of recent changes in the cy près doctrine that enable judges to award unclaimed funds from class actions to "law related entities such as law schools" fits squarely within this analysis.
The other nonquantitative contributions deal with more familiar topics. Nicholas Curott and Edward Stringham do a nice job retelling the story of AngloSaxon law as a spontaneous order that focused on victim compensation and how it was replaced by a centralizing Norman legal order after 1066. …