Article

The Analysis of Courts in the Economic Analysis of Law

Lewis A. Kornhauser

in The Oxford Handbook of Law and Politics

Published in print August 2008 | ISBN: 9780199208425
Published online September 2009 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199208425.003.0040

Series: Oxford Handbooks of Political Science

 The Analysis of Courts in the Economic Analysis of Law

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Many analyses of courts within the economic analysis of law are indistinguishable from those produced by positive political theorists; they consider how judges control, exploit, or resolve conflicts of interest among judges. This article considers three contributions by economic analysts of law outside this common, positive, political theoretic model but which still exploit the tools of rational-choice theory. These contributions either integrate appellate decisio -making within a more comprehensive model of litigant and trial behavior; assume that judges constitute a team with shared preferences; or assume that judges decide cases rather than announce or implement policies. These three elements yield a substantively different understanding of courts than the standard model of positive political theory (PPT). The assumption of shared preferences explicitly rejects the principal-agent model that is standard in PPT. The integration of appellate decision making with other aspects of the disputing process and the shift from policies to cases are consistent with, but potentially transformative of, the standard principal-agent models of adjudication.

Keywords: economic analysis; courts; law; positive political theory; judges; rational-choice theory; appellate decision making; principal-agent model; disputing; adjudication

Article.  5638 words. 

Subjects: Politics ; Politics and Law ; Political Economy

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