Does law and economics help decide cases?

Our answer is “less often than you might think.” We qualify and defend this answer in several steps. First, we offer some suggestive evidence that major scholarly contributions in law and economics have had relatively more influence with academics than with judges. For example, ranking articles on the basis of judicial citations rather than academic citations produces interesting results: Judges cite Ronald Coase’s “The Problem of Social Cost,” by far the most cited paper in the legal academy, much less frequently than doctrinal papers that have received relatively little attention from scholars. Second, we argue that some common features of law and economics scholarship are unappealing to judges. The broadest form of explanatory law and economics—like the hypothesis that the common law has tended to produce efficient rules—is often of little use to judges, who require reasons for making or justifying current decisions. Prescriptive law and economics, meanwhile—like various arguments that the legal system should produce efficient rules—often proceeds from ideological premises that judges don’t share, or fails to account for the institutional constraints under which judges operate. In short, much law and economics scholarship is insufficiently doctrinal to appeal to the average judge. These features of law and economics scholarship don’t prevent judges from using economics all the time. After all, economics is a basic social science, and judges encounter economic questions with some regularity. But, even here, we find little evidence that today’s judges are making greater use of concepts like “efficiency” and “incentives” than those of the past. Throughout this essay, we comment on Guido Calabresi’s “The Future of Law and Economics” (2016) and Richard Posner’s “Divergent Paths: The Academy and the Judiciary” (2016).