A Comment on "Some Uses and Abuses of Economics in Law"

TLDR: The positive economic theory of the common law as mentioned in this paper has been widely accepted as a sound theory of law and it has been used in the legal community for a long time to provide an organic, historical pedigree for a plausible, intelligible, and trenchant evaluative criterion on which scholars can base critical studies of legal rules and doctrines.

Abstract: I, like Professor Posner, find economic analysis of law most interesting in its guise of a positive or descriptive theory about the making and content of law-positive as opposed to normative or prescriptive, "making and content of law" as opposed to "impact of law on conduct generally."' I also agree, although for reasons of my own, with Posner's insistence that the positive economic theory of law "deserves to be taken seriously."2 His reason for thinking so is the prima facie case he makes for the theory's empirical validity. I would say that, whatever its validity (which certainly is not nil), the theory must be taken seriously because it is exerting and is destined to exert a strong influence on legal criticism. It does so by offering to provide, through objective empirical research, an organic, historical pedigree for a plausible, intelligible, and trenchant evaluative criterion on which scholars can proceed to base critical studies of legal rules and doctrines. It is some years now since Arthur Leff shrewdly pointed out how economic analysis might serve as the answer to the modern legal scholar's prayer for an objectively defensible critical standard. Since I have elsewhere4 discussed the ways in which we can all too easily pass "from descriptive law to legal norm"-"from the perception of a pervasive and simplifying regularity in law to a belief that law ought to conform to the perceived regularity"-I shall not dwell on those matters here, although I shall return to them briefly later on. I further agree with Professor Posner that the positive economic theory of the common law is a pretty tough nut to crack empirically and that a number of the challenges to it have been misdirected. In order to offer him this friendly support, however, I must also emphasize the modesty of the theory as it is circumspectly displayed in this