Chapter 24 2. School of law and economics

Richard Posner, now a judge on the Federal Court of Appeals in Chicago, is probably the best-known exponent of this school of thought.He has authored many monographs and papers.His legal philosophy is most clearly reflected in his book, The Economics of Justice.The main theme of the book is that legal rules and (more broadly) political institutions in general should be evaluated according to whether they promote "wealth maximization", that is, whether legal rules or institutional arrangements help to increase the total wealth of society.Posner defines social wealth as "the comprehensive satisfaction of money-based choices" (p. 61 of the book).He linked the concept of wealth maximization with the concept of justice, and believed that a society that maximizes its wealth may be a just society.Thus, he makes wealth maximization an ethical principle (p. 115 of the book).

Posner is convinced that the free market is the best means to increase social wealth, and the complete market is generally the most efficient, so the government should interfere with the operation of the market as little as possible.Posner argues that common law rules created by judges increase economic efficiency because common law does not unduly affect freedom of contract and private property rights.He believes that statutes have recently shown a regulatory tendency, which may have an adverse effect on improving economic efficiency.He therefore applauds a statute that gives priority to the free development of private competing interests.He also concedes, however, that regulatory regulations embodying public interest purposes are sometimes necessary to compensate for the inadequacies of an economic system based on free markets.

As for the judicial process, Posner believes that judges should avoid bringing social policy considerations into their judgments.He believes that the law is in many ways an institution that restricts freedom, so he hopes that legal punishment can focus on a narrower focus.He believes that the core of legal thinking should be an unbiased technical and academic analysis of the law, rather than a pragmatic treatment of the law based on its social effects.He recognized, however, that it was impossible to completely separate legal science from the social world around it.In other words, he recognizes that the autonomy of law is limited.

Justice Easterbrook shared the common law over statute preference, as did Justice Posner, and on the same economic grounds.At common law, the majority of the court's role is to resolve disputes between private parties.These disputes are adjudicated under rules designed to deal with civil relations such as matters concerning contracts, torts, property disputes, kinship and inheritance.Due to the natural limitations of judicial functions, common law judges are unable to implement extensive plans to promote social welfare, such as mandatory safety measures to protect employees in industrial factories and mines, compensation systems for industrial accidents, and distribution systems for relief for the elderly, disabled or unemployed, etc. Wait.The entire social program known as President Roosevelt's "New Deal" was promulgated in the form of legislation, and some subsequent public welfare measures were also determined in the form of legislation.If one believes, as Justices Posner and Easterbrook do, that the laissez-faire state is preferable to the welfare state because the "invisible hand" (Adam Smith's phrase) will direct unrestricted private activity to modest prosperity, It is logical, then, to be skeptical of social reform legislation.Comparing common law with statutory welfare systems, more problems occur in the private sphere.

Consistent with his philosophy, Justice Easterbrook proposed that the court should take a restrictive approach to statutes.He argued that judges should not enforce statutes unless the object of those statutes was clear, and he relied here on Supreme Court decisions which invalidated vague statutes.To understand Judge Easterbrook's proposal, it is also necessary to consider that in a pluralistic society like the United States, many laws are in fact the product of compromises between competing interest groups.The result is often to obscure the purpose of the legislation.This means that Judge Easterbrook's proposal, if accepted by the court, would block the enforcement of a considerable number of statutes.

Professor Epstein has gone further than Justice Posner and Justice Easterbrook in promoting social norms that minimize government control.In his view, laissez-faire occupies the place of constitutional rules.He hopes to do this by drastically reducing the scope of national police powers. "The term police powers is actually a synonym for the various powers lawfully exercised by government. The Supreme Court of the United States defines police power as the power of the government to weaken individual rights, especially contract and property rights, for the purpose of promoting public safety, public morals, public health, and general welfare.Professor Epstein believes that such a definition of national police powers is too broad.In his Income, he states that the sole function of police power should be "to protect individual liberty and private property against all coercion and deceit" (p. 112 of the book). Argues that government control beyond this would violate the U.S. Constitution.He recognized that this proposal, if accepted by the United States Supreme Court or the United States Congress, would invalidate many public welfare regulations enacted by the federal government and states, including minimum wage and maximum hour laws, rent control laws, and public health laws. many bills.For pragmatic reasons, however, and especially because of the widespread reliance on today's handout system, Epstein is not ready to take direct legislative or judicial action to eradicate the welfare state.He wants to see a gradual transition to what has been called "minimal government".