Law’s Primacy in L&E

Keith Sharfman —  4 August 2006

Kudos to Josh for pointing us to Judge Posner’s fascinating and on the whole quite favorable review of Steven Shavell’s Foundations of Economic Analysis of Law.

Posner’s most interesting statement in the essay may well be:

“It is curious but true that, although economics is intellectually more sophisticated than law and though there is—recognition of this point is close to the heart of economic analysis of law—a considerable isomorphism between law and economics, no one, however bright, who is not a lawyer can get the law quite right. Law is like a language that you have to be a native speaker of to speak correctly.”

This ties in to our discussion a few months ago about whether law has primacy in the “law and economics” discipline. Posner captures here very well what I was then trying to say about economists who lack legal training. You can be the greatest economist in the world, but you won’t be able to describe the law with complete depth and precision if you never went to law school.

For this reason, I remain convinced that the best place to study and do research in law and economics is at a law school and not in an economics department. If Shavell had stayed in an economics department and never come to HLS, I doubt that it would have been possible for him to make the enormous contribution to L&E that he has made.

4 responses to Law’s Primacy in L&E


    Thanks to Larry for the trackback and to Josh and Bruce for your comments. Josh, you make a good point about L&E’s predicted future focus on comparative institutional analysis. That may well be L&E’s future. Bruce, I agree with you that adequacy/sufficiency rather than completeness is what’s critical. I’m happy to withdraw the word “complete”! And you’re also right that it’s important for any scholar to be acutely aware of any limitations that he faces in his skill set and knowledge. Quite so!


    “but you won’t be able to describe the law with complete depth and precision”

    *Complete* depth and precision is not the test, however. The question is, can non-JDs describe the law with *adequate* depth and precision. As with most things interdisciplinary, I don’t see why not, as long as the scholar in question invests sufficient time and is aware of their limitations.


    Nice post, Keith. The tradeoffs here seem clear. An econ PhD program offers some things that an econ phd at a law school probably does not. Conversely, study at a law school program offers a chance to learn the law and legal institutions in greater detail. Both paths involve opportunity costs. The question is how to economize on these tradeoffs. One interesting thing in Posner’s essay that supports your claim is his prediction that empirical, comparative analysis of institutions is the future of L&E (rather than say, applied micro and modeling). An alternative answer, of course, is to just to both — which imposes its own unique set of costs.

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  1. Legal Theory Blog - August 4, 2006

    Posner on Shavell in the Blogosphere…

    Essential blogsurfing today:Posner on the Overlapping Generations of Law and Economics by Josh Wright. Law’s Primacy in LE by Keith Sharfman.Both posts react to Richard Posner’s review of Steven Shavell’s Foundations of Economic Analysis of Law in the…