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The D.C. Circuit's Judge Douglas Ginsburg recently returned to his old stomping grounds, Harvard Law School, to speak on the subject of Law & Economics.
He reflected on the history of the study of Law & Economics -- a
course of events in which he played a substantial part -- and then,
moving from the campus to the courthouse, he turned to the question of
what role Law & Economics plays in his work as a judge:
Careful to not oversell the effect and future use of law and Economics
Ginsburg ended with these personal views of the usefulness and best
practices for law and economics in the courtroom. . . . Judge
Ginsburg cautioned on how much law and economics should factor into the
final decision making process of a judge. He stated very simply that
"economic insight can be very helpful, less so in deciding cases, but
to help the judge spot economically dubious arguments along the way."
He laid out his concept that it is the "tools of law and economics"
that are important and offered that "a few simple receipts would carry
the judge, the counselor, and the statesman a long way."
Judge
Ginsburg is (rightfully) one of the federal bench's most
highly-regarded judges, and his recognition of the limits of Law &
Economics befit his judicial temperament. That said, I can't help but
think back to a 1997 article by Judge David Sentelle, the new Chief
Judge of the D.C. Circuit (and for whom I once enjoyed the great honor
of clerking): Law and Economics Should Be Used For Economic Questions (Harvard Journal of Law & Public Policy, vol. 21, p. 121).
In
that article, then-Judge Sentelle argued that "[t]he more judges use
economics to decide cases that do not turn on purely economic
questions, the more their resulting conclusions tend to be utterly
irrelevant to the real questions before the court or so blindingly
obvious that they could better be described as stemming from common
sense than economic analysis." Judge Sentelle's analysis focused on
the example provided by a concurring opinion in the D.C. Circuit's en banc decision in Crawford-El v. Britton,
93 F.3d 813, 838 (1996), in which a judge relied on a Law &
Economics analysis -- including a discussion of demand curves! -- to
resolve the question of what evidentiary standard a plaintiff must
satisfy to defeat an assertion of qualified immunity.
Ever
the gentleman and colleague, Judge Sentelle never identified the author
of that concurrence. Of course, by now you'll guess that the author
was none other than ... then-Chief Judge Ginsburg.
Did Judge
Sentelle's article dampen Judge Ginsburg's enthusiasm for Law &
Economics analyses? I suppose it's impossible to say. But now you know the rest of the story.