Peter O’Loughlin (University of Galway – School of Law) has posted Economic Analysis within Law (Jurisprudence: An International Journal of Legal and Political Thought, forthcoming) on SSRN. Here is the abstract:
Traditionally understood as methodological substitutes, doctrinal analysis and economic analysis have operated as separate perspectives on law and legal systems. Most conceptions and iterations of their debates, however, have manifested at law’s substantive periphery, like its purpose or its normative goals. This has been at the expense of situating and examining these methodologies in the context of their analytical processes. This Article critically reassess these age-old debates not on parameters of content and substance but through the paradigm of core reasoning modes. Once this shift away from substance is undertaken, one begins to see that the doctrinal method and economic analysis have more in common than ostensibly might be the case. At the doctrinal method’s mechanical core are analytically acute choices that to date have been legally unaccounted for by legal purists and constitute new and different kinds of discretion in judicial reasoning. This Article coheres these fragmentarily examined legal lacunae into a unifying concept called methodological discretion. The Article claims that methodological discretion is fundamentally economic in the form of information revelation and choice modelling and provides an objective and measurable basis for constraining judges at this level of judicial decision-making.
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