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More About This Textbook
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 subtheme the issue of proper standards of constitutional adjudication by the Supreme Court.
Editorial Reviews
Fortune
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
Stanford Law Review
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
Wall Street Review of Books
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
Product Details
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Meet the Author
Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and 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