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The Economic Approach to Law, Second Edition


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Table of Contents

@fmct:Contents @toc4:List of Tables and Figures xv Preface xix @toc2:Chapter 1 Introductory Concepts 1 @toc3:What Is Law and Economics? 000 @toc3a:Positive and Normative Analysis 000 Is Efficiency a Valid Norm for Evaluating Law? 000 @toc3:Efficiency Concepts 000 @toc3a:Pareto Efficiency 000 Potential Pareto Efficiency, or Kaldor-Hicks Efficiency 000 Consensual Versus Nonconsensual Exchange 000 @toc3:The Coase Theorem 000 The Law in "Law and Economics" 000 @toc3a:The Nature of the Common Law 000 The Court System in the United States 000 @toc3:Conclusion 000 Discussion Questions 000 Problems 000 Chapter 2 An Economic Model of Tort Law 000 What Is a Tort? 000 The Social Function of Tort Law 000 Elements of a Tort Claim 000 Cause-in-Fact 000 Proximate Cause 000 Liability Rules 000 An Economic Model of Accidents: The Model of Precaution 000 The Unilateral Care Model 000 Social Optimum 000 Actual Care Choice by the Injurer 000 Comparison of Strict Liability and Negligence 000 Bilateral Care Model 000 No Liability and Strict Liability 000 Negligence 000 The Hand Rule 000 The Reasonable-Person Standard 000 Contributory Negligence 000 Negligence with Contributory Negligence 000 Strict Liability with Contributory Negligence 000 Further Topics 000 Sequential Care Accidents* 000 The Injurer Moves First 000 The Victim Moves First 000 Last Clear Chance 000 Comparative Negligence 000 Causation and Liability* 000 Cause-in-Fact 000 Proximate Cause 000 Res Ipsa Loquitur 000 Uncertainty over Causation 000 Activity Levels 000 Punitive Damages 000 The Judgment-Proof Problem 000 The Impact of Liability Insurance 000 Litigation Costs 000 Legal Error* 000 The Statute of Limitations for Tort Suits 000 Intentional Torts 000 Valuing Human Life and Safety 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 3 Applying the Economic Model of Tort Law 000 Products Liability 000 A Brief History of Products Liability Law 000 An Economic Model of Products Liability 000 Equilibrium Price and Output for a Dangerous Product 000 Care Choices by Manufacturers and Consumers 000 Consumer Perceptions of Risk 000 A Note on Custom as a Defense 000 Recent Trends 000 Evidence on the Impact of Products Liability Laws 000 Concluding Remarks 000 Workplace Accidents 000 Respondeat Superior 000 Accidents in which the Victim Is an Employee 000 Workers' Compensation Laws 000 Liability for Environmental Damages 000 Characteristics of Environmental Accidents 000 Multiple Victims 000 Causal Uncertainty 000 Superfund 000 Case Study: Asbestos 000 Medical Malpractice 000 Customary Practice and Informed Consent 000 Do Physicians Practice Defensive Medicine? 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 4 The Economics of Contract Law I: The Elements of a Valid Contract 000 Contracts and Efficient Exchange 000 The Elements of a Valid Contract 000 Reasons for Invalidating Contracts 000 Mental Incapacity or Incompetence 000 Coercion or Duress 000 Mistake and the Duty to Disclose Private Information 000 Purely Distributive Information 000 Socially Valuable Information 000 Casual Versus Deliberate Acquisition of Information 000 Disclosure of Unfavorable Information 000 Unconscionability 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 5 The Economics of Contract Law II: Remedies for Breach 000 The Efficient Breach Model 000 Money Damages and Efficient Breach 000 Incentives for Efficient Reliance 000 Mitigation of Damages 000 Impossibility and Related Excuses 000 Efficient Risk Sharing 000 Commercial Impracticability 000 Specific Performance 000 Transaction Costs 000 Subjective Value and Efficient Breach 000 The Value of Consent 000 Self-Enforcement of Contracts 000 Liquidated Damage Clauses 000 Product Warranties* 000 Express Warranties 000 Implied Warranties 000 Long-Term Contracts* 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 6 The Economics of Property Law: Fundamentals 000 The Nature and Function of Property Rights 000 The Definition of Property Rights 000 Property Rights and Incentives 000 The Emergence of Property Rights 000 Enforcement of Property Rights 000 Fundamentals of the Economics of Property Law 000 The Coase Theorem 000 The Assignment of Rights and the Distribution of Wealth 000 Examples of the Coase Theorem 000 The Role of Transaction Costs 000 Loss Aversion and the Endowment Effect Enforcement Rules 000 Property Rules and Liability Rules 000 The Choice Between Property Rules and Liability Rules 000 Trespass and Nuisance 000 A Note on Inalienability of Property Rights The General Transaction Structure 000 Consensual Transfers of Property 000 The Legal Protection of Ownership 000 Should the Law Protect the Possessor or the Claimant? An Analysis of Land Title Systems* 000 Land Title Systems: Recording Versus Registration 000 Land Title Systems in the United States 000 Title Protection and Economic Development 000 Limited and Divided Ownership 000 Leasing 000 The Lease: A Contract or Conveyance? 000 Mitigation in Leases 000 The Law of Waste 000 Sharecropping 000 Private Versus Group Ownership 000 The Optimal Scale of Ownership 000 Public Goods 000 The Anticommons Problem and the Right to Partition* 000 Intellectual Property 000 Patents 000 Trade Secrets Copyrights 000 Trademarks Remedies Conclusion 000 Discussion Questions 000 Problems 000 Chapter 7 Involuntary Transfers and Regulation of Property 000 Involuntary Transfers and Restrictions on Transfers Between Private Parties 000 Adverse Possession 000 The Mistaken Improver Problem* 000 Inheritance Rules 000 Primogeniture 000 The Rule Against Perpetuities 000 Government Acquisition of Property Under Eminent Domain 000 The Eminent Domain Clause 000 Public Use and the Scope of the Takings Power 000 The Meaning of Just Compensation 000 Case Study on the Determination of Just Compensation: "The Assassin's Bequest" 000 Eminent Domain and Land Use Incentives 000 The No-Compensation Result 000 Arguments Against the No-Compensation Result 000 Government Regulation of Property 000 The Compensation Question 000 Tests for Compensation 000 An Economic Model of Regulatory Takings 000 Implications of the Efficient Compensation Rule 000 Investment-Backed Expectations: Does the Market Eliminate the Need for Compensation?* 000 Compensation and the Timing of Development* Regulation Versus the Common Law 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 8 The Economics of Dispute Resolution 000 The Litigation Process 000 Why Do Trials Occur? 000 The Differing Perceptions, or Optimism Model 000 The Asymmetric Information Model 000 The Social Versus Private Incentive to Sue 000 Procedural Rules and Litigation Costs 000 Discovery 000 The English Versus American Rule 000 The English Rule and Settlement 000 The English Rule and the Incentive to File Suit 000 Evidence on the Impact of the English Rule 000 Rule 68* 000 Contingent Fees* 000 The Benefits of Contingent Fees 000 Contingent Fees and Settlement 000 Do Contingent Fees Promote Frivolous Suits? 000 Frivolous Suits 000 Court Delay* 000 Alternative Dispute Resolution 000 Evolution of the Law 000 Selection of Disputes for Trial 000 Is the Common Law Efficient? 000 Empirical Evidence on Legal Change 000 Judicial Decision Making and Legal Change 000 Decision by Precedent 000 An Economic Model of Precedent 000 Precedents as a Stock of Knowledge 000 Procedural Responses to Legal Errors* 000 The Standard of Proof 000 Appeals as a Means of Error Correction 000 What Do Judges Maximize? 000 Judicial Self-Interest and the Law 000 The Optimal Level of Judicial Independence Pragmatism and the Economic Approach to Law 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 9 The Economics of Crime 000 Distinguishing Crimes and Torts 000 Crimes Are Intentional 000 Other Reasons for Public Enforcement 000 Examples of Private Enforcement 000 Property Rules, Liability Rules, and Criminal Sanctions 000 The Economic Model of Crime 000 The Offender's Decision to Commit a Crime and the Supply of Offenses 000 Optimal Punishment 000 The Optimal Fine 000 Gain Versus Harm-Based Fines 000 Fines and Imprisonment 000 Prison, Probation, and Parole 000 The Probability of Apprehension Is Variable 000 Why Are Fines Not Equal to Offenders' Wealth? 000 Repeat Offenders 000 Incapacitation Empirical Evidence on the Economic Model of Crime 000 The Death Penalty 000 Economics of the Death Penalty 000 Constitutional Issues 000 Judicial Discretion in Sentencing The Bail System* 000 Private Protection* 000 Plea Bargaining 000 Economic Models of Plea Bargaining 000 Plea Bargaining and Deterrence 000 A Comparative Perspective 000 Topics 000 Crime and the Business Cycle* 000 Gun Laws and Crime 000 Primitive Law Enforcement 000 Some Constitutional Issues 000 Free Speech 000 The Rule Against Self-Incrimination 000 The Right of Privacy 000 Conclusion 000 Discussion Questions 000 Problems 000 Chapter 10 The Economics of Antitrust Law Perfect Competition versus Monopoly Competitive Markets and Welfare Monopoly Cartels Antitrust Law Enforcement and Remedies The Per Se Rule versus the Rule of Reason Optimal Fines The "New" Antitrust Law and Economics Contestable Markets Transaction Cost Economics Network Effects Imperfect Information Natural Monopoly Price Regulation Public Enterprise Conclusion Discussion Questions Problems Answers to In-Chapter Exercises 000 Notes 000 Works Cited 000 Index 000

About the Author

Thomas J. Miceli is Professor of Economics at the University of Connecticut.


"The second edition of Miceli's The Economic Approach to Law is most welcome. Miceli's approach is to start with the socially optimal solution to any problem and then examine individual behavior. His unremitting economic approach hammers home the economic way of thinking about law and economics. The writing is as clear as the thought process. My students like this book a lot." - Roger D. Blair, University of Florida "In The Economic Approach to Law, Thomas Miceli offers a clear, concise, and consistent exploration of the economics of law. This book is ideal for readers who are familiar with microeconomic theory and can use it to analyze how the law affects consumer and firm behavior. Miceli illustrates how legal rules can encourage use of efficient precautions, reduce transactions costs, and spread risk." - Michelle J. White, University of California, San Diego

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