Review Essay: Law and Economics in the Personal Sphere

Posted: 8 Oct 2003

See all articles by Claire A. Hill

Claire A. Hill

University of Minnesota Law School

Abstract

My review essay makes the case for law and economics in the personal sphere by reviewing and appraising the following four books: Richard Posner, Sex and Reason; Eric Posner, Law and Social Norms; Robert Frank, Luxury Fever, and Margaret Brinig, From Contract to Covenant. My focus is on answering objections from those who may be skeptical of law and economics methodology generally, but are particularly skeptical of its applicability in the personal sphere. Law and economics does not (certainly now, and perhaps even before the advent of behavioral law and economics) require viewing people as conducting their lives wholly with conscious calculation, constantly cutting the best deal they can for themselves. Such people are as much caricatures as are people conducting their lives completely without calculation, conscious or otherwise, always giving freely of themselves with no thought of getting something in return.

My essay considers why some people might want to reject the applicability of law and economics to the personal sphere. Law and economics seems determined (indeed, even eager) to make people see themselves warts and all. A person might want to think of himself as caring deeply about the environment, persons with disabilities, world poverty, and other social ills. Law and economics often tells people they don't care as much about such things as they like to think, insofar as they want good results without being willing to pay for them. Similarly, a person might want to think of himself as a romantic, being carried away by sentiment in his choice of romantic mate. Law and economics would point out the extent to which mate-choice is influenced by market-like considerations.

Some people therefore may look to dismiss the message; they haven't had to look far, because certain of law and economics' pathologies, principally the claim to more of a scientific mantle than is sometimes warranted, have invited cheap shots - ways to dismiss the messenger without listening to his whole message. And this is a shame. Law and economics could be a bit more agnostic about its claims in the personal sphere. It could spend more time explaining why market shouldn't be an expletive, stressing the pervasiveness of metaphor, and metaphor's instrumental character. Using a concept in a new context - carrying the suitcase - doesn't commit us to wearing all the clothes in the suitcase. As the books I'm reviewing show, we can get the benefits of the explanatory power law and economics has to offer while limiting or even eliminating the use of the clothes we would like to have left behind.

Suggested Citation

Hill, Claire Ariane, Review Essay: Law and Economics in the Personal Sphere. Available at SSRN: https://ssrn.com/abstract=452060

Claire Ariane Hill (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-6521 (Phone)

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