Nature and Aims of Criminal Law Unit 6 Seminar

An Economic Approach to the Law It starts with the assumption that people choose conduct that will produce the greatest pleasure. Choice may be considered in terms of costs or benefits to each party. The Kaldor-Hicks criteria (discussed in Chapter 6 in your text) suggests that the most efficient transaction is one where a party so greatly benefits from a transaction as to offset the costs borne by the other party.

An Economic Approach According to this approach, each individual is the ultimate judge of what makes him or her better or worse off. Each person’s preferences determines what counts as a cost or benefit. Do you agree or disagree with that? Rational decisions reflect the net benefits of the decision itself. Of course, there are many different approaches to “economic rationality.”

Hypothetical As we discussed in Chapter 4, the general common- law rule is that an individual has no legal duty to aid another person unless there is some kind of special legal relationship between the two. The counter-rule proposed is that a person should have a duty to aid anyone in grave danger as long as the person can do so with little or no inconvenience to himself. Which rule is more efficient economically? Should considerations of economic efficiency determine which rule we should have?

The Efficiency of Common Law Among others, Posner believes that the common law is efficient, since it has changed over time to serve society’s interests in a better way. His argument: (1) a social consensus holds that efficiency is a good thing for society; (2) the common law is an ineffective way to redistribute the resources of society in order to assist some politically active interest group. Judges will fashion the common law so as to make it efficient. Do you think this is true?

Social Morality vs. Efficiency As discussed this term, positive law is made and maintained by the human beings who make up society. As humans, it is believed that we generally think and make judgments more often in terms of our social morality than in terms of economic efficiency. True or Not?

Dworkin’s Critique of Efficiency Law and economic advocates believe that the benefits of efficiency (societal benefits like higher standard of living, better protection of individual rights) are why it should be used to as a standard to evaluate legal rules. Ronald Dworkin is quite skeptical about the Kaldor-Hicks efficiency model. He says that it much more sensible to believe that the best way to protect individual rights, for example, is not by pursuing efficiency but by directing granting people their rights. ▫Dworkin does concede that an indirect strategy may sometimes mean that promoting efficiency is the best way to bring about some intrinsic social good. E.g.- baseball players often say that trying to hit a home run is a bad way to go about actually hitting one: instead you should simply keep your eye on the ball and make contact.

The Influence of Law and Economics In the United States, economic analysis of law has been extremely influential. Judicial opinions utilize economic analysis and the theories of law and economics with some regularity. The influence of law and economics has also been felt in legal education. Many law schools in North America, Europe, and Asia have faculty members with a graduate degree in economics. Anthony Kronman, former dean of Yale Law School, has written that “the intellectual movement that has had the greatest influence on American academic law in the past quarter-century [of the 20th Century]” is law and economics.