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Law and Economics: The Road Not Taken

Published online by Cambridge University Press:  01 July 2024

John J. Donohue III
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For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.

Oliver Wendell Holmes (1921: 83)

I do not see how one can grasp the meaning of law within society except from the vantage point of social science.

Lawrence M. Friedman (1986: 780)

Since both law and society and law and economics apply social science concepts and methods to the problems of the legal system, one might think that the two disciplines are natural allies. Indeed, with the largely empirical focus of law and society and the strong emphasis on theory in law and economics, the benefits from collaboration between the two would seem to be particularly great. Perhaps surprisingly, though, they have often been at odds with one another, with both groups willing to concede only grudgingly that the other has made useful contributions to the study of legal and public policy issues. The hostility is reflected in the fact that, at recent law and society meetings, very few devotees of law and economics have been in attendance, either as speakers or as members of the audience. What then can explain this chill?

Type
Research Article
Information
Law & Society Review , Volume 22 , Issue 5 , 1988 , pp. 903 - 926
Copyright
Copyright © 1988 The Law and Society Association.

Footnotes

The author thanks Ian Ayres, Peter Siegelman, and Rayman Solomon for their helpful comments on an earlier draft of this paper.

*

The paper is by John Lott, who argues that a year in jail is not an equivalent punishment for both rich and poor since the wealthier defendant presumably has higher earnings, and thus loses more than his impecunious cellmate by being confined in prison. In order to restore balance to the system, Lott argues, we must reduce the expected punishment of the rich—i.e., the probability of conviction times the length of incarceration if convicted. One way to achieve this goal is to enable the rich to use their wealth to “buy” a decreased probability of conviction, through the aid of high-priced criminal defense attorneys (Lott, 1987: 1310).

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