Judge Ginsburg on Law & Economics

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 – acourse of events in which he played a substantial part – and then,moving from the campus to the courthouse, he turned to the question ofwhat role Law & Economics plays in his work as a judge:

Careful to not oversell the effect and future use of law and EconomicsGinsburg ended with these personal views of the usefulness and bestpractices for law and economics in the courtroom.  …  JudgeGinsburg cautioned on how much law and economics should factor into thefinal decision making process of a judge. He stated very simply that”economic insight can be very helpful, less so in deciding cases, butto 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 carrythe judge, the counselor, and the statesman a long way.”

JudgeGinsburg is (rightfully) one of the federal bench’s mosthighly-regarded judges, and his recognition of the limits of Law &Economics befit his judicial temperament.  That said, I can’t help butthink back to a 1997 article by Judge David Sentelle, the new ChiefJudge of the D.C. Circuit (and for whom I once enjoyed the great honorof clerking):  Law and Economics Should Be Used For Economic Questions (Harvard Journal of Law & Public Policy, vol. 21, p. 121).

Inthat article, then-Judge Sentelle argued that “[t]he more judges useeconomics to decide cases that do not turn on purely economicquestions, the more their resulting conclusions tend to be utterlyirrelevant to the real questions before the court or so blindinglyobvious that they could better be described as stemming from commonsense than economic analysis.”  Judge Sentelle’s analysis focused onthe 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! – toresolve the question of what evidentiary standard a plaintiff mustsatisfy to defeat an assertion of qualified immunity.

Everthe gentleman and colleague, Judge Sentelle never identified the authorof that concurrence.  Of course, by now you’ll guess that the authorwas none other than … then-Chief Judge Ginsburg.

Did JudgeSentelle’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 .