The Economics of Justice

by Richard A. Posner

Overview

Richard A. Posner is probably the leading scholar in the rapidly growing field of the economics of law; he is also an extremely lucid writer. In this book, he applies economic theory to four areas of interest to students of social and legal institutions: the theory of justice, primitive and ancient social and legal institutions, the law and economics of privacy and reputation, and the law and economics of racial discrimination.

The book is designed to display the power of economics to organize and illuminate diverse fields in the study of nonmarket behavior and institutions. A central theme is the importance of uncertainty to an understanding of social and legal institutions. Another major theme is that the logic of the law, in many ways but not all, appears to be an economic one: that judges, for example, in interpreting the common law, act as if they were trying to maximize economic welfare.

Part I examines the deficiencies of utilitarianism as both a positive and a normative basis of understanding law, ethics, and social institutions, and suggests in its place the economist’s concept of “wealth maximization.”

Part II, an examination of the social and legal institutions of archaic societies, notably that of ancient Greece and primitive societies, argues that economic analysis holds the key to understanding such diverse features of these societies as reciprocal gift-giving, blood guilt, marriage customs, liability rules, and the prestige accorded to generosity. Many topics relevant to modern social and philosophical debate, including the origin of the state and the retributive theory of punishment, are addressed.

Parts III and IV deal with more contemporary social and jurisprudential questions. Part III is an economic analysis of privacy and the statutory and common law rules that protect privacy and related interests—rules that include the tort law of privacy, assault and battery, and defamation. Finally, Part IV examines, again from an economic standpoint, the controversial areas of racial and sexual discrimination, with special reference to affirmative action. Both Part III and Part IV develop as a sub-theme the issue of proper standards of constitutional adjudication by the Supreme Court.

Product Details

ISBN-13:	9780674252813
Publisher:	Harvard University Press
Publication date:	08/16/1983
Sold by:	Barnes & Noble
Format:	eBook
Pages:	432
File size:	760 KB

About the Author

Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

Table of Contents

1. An Introduction to the Economics of Nonmarket Behavior

The Plan of the Book

PART I: Justice and Efficiency

2. Blackstone and Bentham

Blackstone's Commentaries

Bentham's Antipathy to Blackstone

Blackstone and Bentham Compared

3. Utilitarianism, Economics, and Social Theory

Some Problems of Utilitarianism

Wealth Maximization as an Ethical Concept

4. The Ethical and Political Basis of Wealth Maximization

The Consensual Basis of Efficiency

Implications for the Positive Economic Analysis of Law

Dworkin's Critique of Wealth Maximization

PART II: The Origins of Justice

5. The Homeric Version of the Minimal State

A Taxonomy of Limited Government

Government and Political Values in Homer

The Homeric Social Order

Homeric Individualism

Some Modern Parallels

The Theory of the State

6. A Theory of Primitive Society

The Costs of Information

A Model of Primitive Society

Other Primitive Adaptations to High Information Costs

7. The Economic Theory of Primitive Law

The Legal Process

Property

Contracts

Family Law

The System of Strict Liability in Tort

Criminal Law

8. Retribution and Related Concepts of Punishment

From Revenge to Retribution, and Beyond

Pollution: Retribution against Neighbors and Descendants

Guilt versus Responsibility

PART III: Privacy and Related Interests

9. Privacy as Secrecy

The Economics of Private Information and Communications

The Tort Law of Privacy

10. A Broader View of Privacy

The Etymology of Privacy: Seclusion and Autonomy

Evidence for the Economic Theory of Privacy

The Common Law and the Economic Theory of Privacy

Defamation and Disparagement

The Statutory Privacy Movement

11. The Privacy Jurisprudence of the Supreme Court

Privacy Cases before Griswold

The Griswold Decision

Privacy in the Supreme Court since Griswold

Conclusion

PART IV: The Supreme Court and Discrimination

12. The Law and Economics of Discrimination

13. The DeFunis Case and Reverse Discrimination

The Reasonableness of Reverse Discrimination

The Constitutional Issue

14. Bakke, Weber, and Beyond

Bakke

Weber

Index

Editorial Reviews

This is a remarkable collection of essays… Few can match the breadth of scholarship and the incredible originality of Richard Posner’s work.

Wall Street Review of Books - Thomas S. Ulen

The book is a testimony to the range of Posner’s competence and interest. It is nicely written and accessible to anyone familiar with the particular legal issues he discusses, with the general problem of justice, or with tools of economic analysis.

Stanford Law Review - Jules Coleman

Richard Posner is the leading pioneer in the relatively new field known loosely as ’law and economics’… [He] is in the thick of the intellectual battles about the kind of world we live in, and the kind we want to create.

Fortune - Thomas Sowell

Richard Posner is the leading pioneer in the relatively new field known loosely as 'law and economics'... [He] is in the thick of the intellectual battles about the kind of world we live in, and the kind we want to create.--Thomas Sowell "Fortune"

The book is a testimony to the range of Posner's competence and interest. It is nicely written and accessible to anyone familiar with the particular legal issues he discusses, with the general problem of justice, or with tools of economic analysis.--Jules Coleman "Stanford Law Review"

This is a remarkable collection of essays... Few can match the breadth of scholarship and the incredible originality of Richard Posner's work.--Thomas S. Ulen "Wall Street Review of Books"

From the Publisher

Richard Posner is the leading pioneer in the relatively new field known loosely as 'law and economics'...[He] is in the thick of the intellectual battles about the kind of world we live in, and the kind we want to create.
— Thomas Sowell

Fortune

This is a remarkable collection of essays...Few can match the breadth of scholarship and the incredible originality of Richard Posner's work.
— Thomas S. Ulen

Wall Street Review of Books

The book is a testimony to the range of Posner's competence and interest. It is nicely written and accessible to anyone familiar with the particular legal issues he discusses, with the general problem of justice, or with tools of economic analysis.
— Jules Coleman

Stanford Law Review