Some thoughts on economic reasoning in appellate courts and legal scholarship

Endre Stavang

pp. 125-148

in: Klaus Mathis (ed), Law and economics in Europe, Berlin, Springer, 2014

Abstract

Economists find it worthwhile to study the effects of law, and to offer explanations or recommendations in light of such studies. Lawyers also contribute to this same enterprise, i.e., using the intellectual tools typically developed and used by economists. A lawyer may do this because it has intrinsic (intellectual) value or because it is relevant, by which I mean that it is proper from the perspective of legal methodology (and, if applicable, his or her's own preferences). In this chapter, examples from Norway of such relevance are offered based on personal experienced as a judge and as a legal scholar. First, the intrinsic ingredient of economics in law is suggested using three appellate court cases that I co-decided for illustrative purposes. Secondly, three Norwegian contributions to legal scholarship are discussed to shed light on a demarcation problem that may arise more often in Europe than many other places and also to suggest more could and should be done to fuse economic analysis of law and doctrinalism . Thirdly, and relatedly, three principles for bridging economic reason and legal argument are highlighted. Although the main goal is to reflect normatively and exploratory on professional norms from the standpoint of someone who has internalized these norms, the chapter simultaneously reports "field data" contradicting Posner 's claim that economic analysis of law is congenial to American judges only (Posner , Legal Theory, p. 42) and Eidenmüller 's claim that it is a prerogative for the Legislator to take economic analysis of law into account (Eidenmüller , p. 490).