Economic analysis of law/

por POSNER, Richard Allen
[ Livros ] Série: Aspen Casebook Series Motivo da edição:9. ed. Publicado por : Wolters Kluwer Law and Business, (Nova York:) Detalhes físicos: 1026 p. ISBN:9781454833888.
Assunto(s): Direito Econômico
Ano: 2015 Tipo de Material: Livros
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TABLE OF CONTENTS

PREFACE

PART 1 LAW AND ECONOMICS: AN INTRODUCTION

CHAPTER 1 THE NATURE OF ECONOMIC REASONING

§1.1 Fundamental Concepts
§1.2 Value, Utility, Efficiency
§1.3 The Realism of the Economist's Assumptions
§1.4 Irrationality and Hyperrationality; Herein of Behavioral Economics and Game Theory
§1.5 Two Approaches to Economics
Suggested Readings
Problems

CHAPTER 2 THE ECONOMIC APPROACITH TO LAW

§2.1 History
§2.2 Positive and Normative Economic Analysis of Law
§2.3 The Continental Approach
§2.4 Criticisms of the Economic Approach to Law
Suggested Readings

PART II THE COMMON LAW

CHAPTER 3 PROPERTY

§3.1 The Economic Thcory of Property Rights: Static and Dynamic Aspects
§3.2 Problems in the Creation and Enforcement of Property Rights
§3.3 Property Rights in Law and in Economics: Broadcast Frequencies and Airwave Auctions
§3.4 Rights to Future Use
§3.5 Incompatible Uses; the Coase Theorem Revisited
§3.6 Trespass and Eminent Domain
§3.7 Nuisance
§3.8 Solving the Problem of Incompatible Land Uses Through Merger and Restrictive Covenants
§3.9 injunctions Versus Damages as Methods of Enforcing Property Rights
§3.10 Divided Ownership-Estates in Land
§3.11 Problems in the Transfer of Property Rights
§3.12 Possession
§3.13 Distributive Effects of Property Right Assignments
§3.14 Public Lands
Suggested Readings
Problems

CÍJAPTER 4 CONTRACT RIGHTS AND REMEDIES

§4.1 The Process of Exchange and the Economic Roles of Contract Law
§4.2 Consideration
§4.3 Problems of Formation; Herein of Mutual Assent and Unilateral Contracts
§4.4 Mutual Mistake
§4.5 Contracts as lnsurance-Impossibility and Related Doctrines
§4.6 Insurance Contracts
§4.7 Fraud
§4.8 Agency Law
§4.9 Duress, Form Contracts, Bargaining Power, and Unconscionability
§4.10 Fundamental Principies of Contract Damages
§4.11 Consequential Damages
§4.12 Penalties, Punitive Damages, Liquidated Damages, Forfeitures, and No-Modification Ruies
§4.13 Specific Performance
§4.14 Self-Heip, Contract Conditions, and Substantial Performance
§4.15 ImpIied Contracts
§4.16 The Option Theory of Contract Law Versus the Morai Theory
Suggested Readings
Problems

CHAPTER 5 FAMILY LAW AND SEX LAW

§5.1 The Theory of Household Production
§5.2 Formation and Dissolution of Marriage
§5.3 Consequences of Dissolution
§5.4 The Legal Protection of Children
§5.5 Surrogate Motherhood
§5.6 Law and Popuiation
§5.7 Why Regulate Sexual Behavior?
§5.8 Homosexual Marriage
Suggested Readings
Problems

CHAPTER 6 TORT LAW

§6.1 The Economics of Accidents and the Learned Hand Formula of Liability for Negligence
§6.2 The Reasonable-Person Standard
§6.3 Custom as a Defense
§6.4 Victim Fault: Contributory and Comparative Negligence, Assumption of Risk, and Duties to Trespassers
§6.5 Strict Liability
§6.6 Products Liability
§6.7 Causation and Foreseeability
§6.8 Joint Tona, Contribution, Indemnity; Herein of Respondeat Superior and Sexual Harassinent
§6.9 Rescue: Liability Versus Restitution
§6.10 The Function of Tort Damages
§6.11 Damages for Loss ofEarning Capacity
§6.12 Damages for Pain and Suffering, the Problem of Valuing Human Life, and the Risk of Overcompensation
§6.13 The Coilateral Benefits (Coilateral Source) Rifle
§6.14 Negligence with Liability Insurance and Accident Insurance,
No-Fault Automobile Accident Compensatiõn, and Capping Medical-Maipractice Judgments
§6.15 Intentional Torts
§6.16 Defamation
§6.17 Successor Liability
§6.18 Immunities
Suggested Readings
Problems

CHAPTER 7 CRIMINAL LAW

§7.1 The Economic Nature and Function of Criminal Law
§7.2 Optimal Criminal Sanctions
§7.3 Preventing Crime: Multiple-Offender Laws, Attempt and Conspiracy, Aiding and Ahetting, Recidivism, Entrapment
§7.4 Pardons
§7.5 Criminal Intent
§7.6 Hate Crimes
§7.7 Recklessness, Negligence, and Strict Liability
§7.8 The Defense of Necessity (Compulsion)
§7.9 Precautioris by Victims; Herein of Provocation and Gun Control
§7.10 The Economics of Organized Crime
§7.11 The "War on Drugs"
§7.12 Criminal Punjshment ofTerrorists
§7.13 Crime Waves
Suggested Readings
Problems

CHAPTER 8 THE COMMON LAW, LEGAL HJSTORY, AND JURISPRUDENCE

§8.1 The Implicit Economic Logic of the Common Law
§8.2 Economic Torts
§8.3 The Common Law, Economic Growth, and Legal History
§8.4 Common Law as Custom: Hayek's Chailenge to the Economic Analysis of the Common Law
§8.5 Primitive Law
§8.6 Law and Modernization
§8.7 The Rule of Law
§8.8 Law and Social Norms
§8.9 The Moral Content of the Common Law
Suggested Readings
Problems

PART III PUBLIC REGULA TION OF THE MARKET

CHAPTER 9 THE TIIEORY OF MONOPOLY

§9.1 The Monopolist's Price and Output
§9.2 Effect of Changes in Cost or Demand on the Monopoly Price
§9.3 Efficiency Consequences of Monopoly: Deadweight Loss and Rent-Seeking
§9.4 Other Economic Objections to Monopoly; Herein of Innovation and Cost Minimization
§9.5 Price Discrimination
§9.6 Two Impediments to Monopolizing (Besides Entiy): Competition for the Market and Durability
Suggested Readings
Problems

CHAPTER 10 THE ANTITRUST LAWS

§10.1 Cartels and the Sherman Act
§10.2 Tacit Coilusion
§10.3 Problerns With Economic Evidence
§10.4 Resale Price Maintenance
§10.5 Mergers That Create Monopolies or Oligopolies
§10.6 Market or Monopoly Power
§10.7 Market Defiriition and Market Shares
§10.8 Potential Competition
§10.9 Predation
§10.10 Foreclosure, Tie-Ins and Bundling, and Barriers to Entry
§10.11 Antitrust and the "New Economy"
§10.12 Boycotts; Herein of Monopsony
§10.13 Is There Benign Monopsony?
§10.14 Antitrust Damages
Suggested Readings
Problems

CHAPTER 11 INTELLECTUAL PROPERTY

§11.1 Are Patents Property?
§11.2 Patents and Irmovation
§11.3 Trade Secrecy
§11.4 Privacy
§11.5 Copyright
§11.6 The Open-Source Movement
§11.7 Trademarks
§11.8 Patent Agreements, the BMI-ASCAP Blanket Licenses, and the Intersection Between Antitrust and Inteliectual Property
Suggested Readings
Problems

CHAPTER 12 THE REGULATION OF THE EMPLOYMENT RELATION

§12.1The Special Treatrnent of Labor Carteis
§12.2 The Economic Logic of the National Labor Relauons Act
§12.3 The Employee Free Choice Act
§12.4 Unions and Productivity
§12.5 Employment at Will
§12.6 Labor-Market Failure: The Case of Judicial Law Clerks
§12.7 Labor and Antitrust Law
§12.8 Minimum Wage and Related "Worker-Protective" Legislation
§12.9 Mandated Benefits
§12.10 Employment Discrimination on Grounds of Race, Sex, Age, and Disability
§12.11 Federal Pension Law
Suggested Readings
Problems

CHAPTER 13 PUBLIC UTIUTY AND COMMON CARRIER REGULATION

§13.1 Natural Monopoly
§13.2 Control of Profita and the Problem of Reasonable Return
§13.3 Other Problems Caused by Attempting to Limit a Regulated Firm's Profits
§13.4 Incentive Regulation
§13.5 Regulation of Rate Structure and of Entry
§13.6 Pay Television
§13.7 Taxation by Regulation (Interna! Subsidization or Cross-Subsidjzatjon)


§13.8 The Demand for Regulation
§13.9 The Deregulation Movement; Privatization
Suggested Readings
Problems

CHAPTER 14 THE CH0IcE BETWEEN REGULATION AND COMMON LAW

§14.1 Optimal Regulation
§14.2 Consumer Fraud Revisited
§14.3 Mandated Disclosure
§14.4 Alternatives to Disclosure: The Case of Trans Fats
§14.5 Safety and Health
§14.6 Regulation of Poliution
§14.7 Traffic Congestion
§14.8 Mandatory Container Deposits
§14.9 Cost-Benefit Analysis as a Regulatory Tool
§14.10 The Limits of Cost-Benefit Analysis: The Case of Global Warming
§14.11 Cable Television: Problems of Copyright and Local Monopoly
§14.12 Selling Highways
Suggested Readings
Problems

PART IV THE LAW OF BUSINESS ORGANIZATIONS

AND FINANCIAL MARKETS

CHAPTER 15 CORPORATIONS, SECURED AND UNSECURED FINANCING,
BANKRUPTCY

§15.1 The Nature of the Firm
§15.2 The Different Kinds of Firm
§15.3 The Corporation as a Standard Contract
§15.4 Corporate Debt and Secured Debt
§15.5 Corporate Bankruptcy
§156 Personal Bankruptcy
§15.7 Piercing the Corporate Veil
§15.8 The Separation of Ownership and Control
§15.9 The Transfer of Corporate Control
§15.10 Corporate Squeeze-Outs and the Competition in Laxity
§15.11 The Compensation Issue
§15.12 Insider Trading and the Problem of Entrepreneurial Reward
§15.13 Corporate Scandals
§15.14 Managerial Discretion and the Corporation's Social Responsibilities
§15.15 Corporate Criminality
§15.16 The Closely Held Corporation
§15.17 Public Utility Regulation Revisited
Suggested Readings
Problems


CHAPTER 16 FINANCIAL MARKETS

§16.1 Portfolio Design
§16.2 Diversification, Leverage, and the Debt-Equity Ratio
§16.3 Why Do Corporations Buy Insurance?
§16.4 Stock Picking and the Efficient-Markets Hypothesis
§16.5 The Chalienge of Behavioral Finance
§16.6 A Deeper Chalienge
§16.7 Implications of Finance Theory for Regulated Monopoly
§16.8 ESOPs Revisited: The Problem of Underdiversification
§16.9 Trust lnvestment Law and Index Funds
§16.10 Social Investing by Trustees
§16.11 The Regulation of the Securities Markets
§16.12 Compensation Revisited: The Case of the Mutual Fund Fees
§16.13 Why Regulate Banks?
§16.14 The Crash of '08
§16.15 The Nirvana Fallacy and Darwinian Economics
§16.16 Are Bankers Greedy?
Suggested Readings
Problerns

PART V LA W AM) THE DISTRJBLJTION OF INCOME
AND WEALTH

CHAPTER 17 INc0ME INEQUALITIES, DISTRIBUTIVE JUSTICE, AND POVERTY

§17.1 The Measurement of lnequality
§17.2 Is lnequality Inefficient?
§17.3 Growing Inequality: Causes and Consequences
§17.4 The Contract Theory of Distributivejustice, and lis Application to Social Security
§17.5 Social Mobility
§17.6 The Costs of Povertv and the Limitations of Private Charity
§17.7 Unrestricted Cash Transfers Versus Benefits iii Kind
§17.8 Wealth Redistribution by Liability Rules: The Case of Housing Code Enforcement
§17.9 Open-Ended Benefits in Kind
§17.10 The Entitlements Quandary
Suggested Readings
Problems

CHAPTER 18 TAXATION

§18.1 Taxatjon and Efficiency
§18.2 Conscription
§18.3 Excise Taxes
§18.4 Real Estate Taxes
§18.5 Corporate Income Taxation
§18.6 Income Taxes Versus Consumption Taxes
§18.7 Value-Added Tax
§18.8 The Definition of Income
§18.9 Income Tax Deductions
§18.10 The Special Treatment of Capital Gains
§18.11 The Progressive Principie
§18.12 Tax Subsidies
Suggested Readings
Problems

CHAPTER 19 THE TRANSMISSION OF WEALTH AT DEATH

§19.1 Death (and Gift) Taxes
§19.2 Selfish Heirs: The Case of the Murdering Heir
§19.3 The Dead Hand and the Cy Pres Doctrine
§19.4 The Incentives of Charitable Foundations
§19.5 Bequests for Purposes
§19.6 Conditions in Private Trusts; Herein of the Spendthrift Trust
§19.7 The Widow's Share
Suggested Readings
Problems

PART VI THE LEGAL PROCESS

CHAPTER 20 THE MARKET, THE ADVERSARY SYSTEM, AND THE LEGISLA TIVE PROCESS AS METHODS OF RESOURCE ALLOCATION

§20.1 Legal and Market Aliocation Compared; Inquisitorial and Adversarial Legal Systems Compared
§20.2 Judicial and Legislative Aliocation Compared
§20.3 The Economic Theory of Legislation
§20.4 Statutory Interpretation in a World of Interest Groiip Politics
§20.5 he Independentjudiciary and Interest Group Politics
§20.6 What Do Judges Maximize?
§20.7 The Economic Theory of Democracy
§20.8 Democracy, Elected Judges, and Judicial Term Limits
§20.9 An Antitrust Approach to Democracy
Suggested Readings
Problems

CHAPTER 21 THE PROCESS OF LEGAL RULEMAKING

§21.1 The Body of Precedents as a Capital Stock
§21.2 Production of Precedents
§21.3 Statutory Production; Rules Versus Standards
§21.4 Stare Decisis
Suggested Readings
Problems

CHAPTER 22 CIVIL AND CRIMINAL PROCEDURE

§22.1 The Economic Goals of Procedure
§22.2 The Costs of Error in Civil Cases
§22.3 Anticipatory Adjudication; Herein of Preliminary Injunctions, Declaratory Judgments, and Advisory Opinions
§22.4 SummaryJudgment and Mouons to Dismiss
§22.5 The Decision Whether to Settle or Go to Trial
§22.6 How Rules of Procedure Affect Senlement
§22.7 The Decision to Settle and the Evolution of the Common Law
§22.8 Mediation as an Aid te Settlement
§22.9 Liability Rules Revisited
§22.10 Plea Bargaining, the Reform of Criminal Procedure,and the Futility Thesis
§22.11 Expenditures on Litigation and the Quest for Efficient Procedure
§22.12 Access te Legal Remedies-Contingent Fees, Class Actions, and Indemnity of Legal Fees
§22.13 Rule 68 and One-Way Indemnity
§22.14 Resjudicata and Coilateral Estoppel
§22.15 Court Delay and Caseload Crises
§22.16 Jurors and Arbitrators
§22.17 Optimal Adjudication: The Case of Contract
§22.18 Appeals
§22.19 Choice of Law
§22.20 The Economics of the Legal Profession
Suggested Readings
Problems

CHAPTER 23 EVIDENCE

§23.1 Evidence as Search and as Error Minimization
§23.2 The Adversarial and Inquisitorial Modeis Further Compared
§23.3 Trial byJury Revisited
§23.4 Burden of Proof
§23.5 Harmless Error
§23.6 Rule 403's Balancing Test
§23.7 Character Evidence
§23.8 Privilege
§23.9 Expert Wimesses
Suggested Readings
Problems


CHAPTER 24 LÁ ENFORCEMENT AND THE ADMINISTRA TIVE PROCESS

§24.1 Public Versus Private Law Enforcement: The Tradeoffs
§24.2 Public Versus Private Enforcement: Positive Implications
§24.3 Case Selection by Public Agencies
§24.4Reguiation by Courts Versus Regulation by Administrative Agencies
§24.5 Overlapping Agencies
§24.6 Regulatory Capture
§24.7 The Structure of the Administrative Agency
§24.8 The Behavior of Administrative Agencies
§24.9 Agency Costs in Public Agencies
§24.10 Judicial Review of Agency Decisions
Suggested Readings
Problems

PART VII THE CONSTITUTION AND THE FEDERAL SYSTEM

CHAPTER 25 THE NATURE AND FUNCTIONS OF THE C0NSTITUT0N

§25.1 The Economics of Constitutionalism: An Introduction
§25.2 The Separation of Powers
§25.3 The Protection of Rights
§25.4 The Scope of Constitutional Rights: The Case of Terrorism
§25.5 Rationality Review
Suggested Readings
Problem

CHAPTER 26 ECONOMJC DUE PROCESS

§26.1 Liberty of Contract as a Constitutional Principie
§26.2 Economic Due Process Revived: The Poor as a Constitutionaily Protected Class
§26.3 The Due Process Rights of Consumers and Public Employees
Suggested Readings
Probiems

CHAPTER 27 THE ECONOMICS OF FEDERALISM

§27.1 The Aliocation of Responsibilities Between the Federal Government and the States §27.2 Responding to Emergencies: Katrina (or Sandy) and Terrorism
§27.3 Federal Courts and Federal Law Enforcement
§27.4 State Taxation: Excise Taxes
§27.5 State Taxation: Real Estate and Corporate Income Taxes
§27.6 Other Limitations on State Reguiation of Interstate Commerce
§27.7 Due Process Limitations on Personal Jurisdiction
§27.8 Interbasin Water Transfers
§27.9 Exporting Poverty
§27.10 Conflict of Laws, and Poilution, Revisited
§27.11 The Commerce Power
Suggested Readings
Problems

CHAPTER 28 RACIAL DISCRIMINATI0N

§28.1 The Taste for Discrimination
§28.2 School Segregation
§28.3 The Requirement of State Action
§28.4 Antidiscrimination Laws
§28.5 Reverse Discrimination
Suggested Readings
Problems

CHAPTER 29 THE PROTECTION OF FREE MARKETS IN IDEAS AND RELIGION

§29.1 The Economic Basis of Freedom of Speech 955
§29.2 The Scope of the Protected Activity: tncitement, Threats, Defaination, Obscenity, and Flag Burning
§29.3 Prior Restraints, Viewpoint Restrictions, and Foruins Law
§29.4 Cost-Benefit Analysis of Free Speech: The Categorícal Approach
§29.5 The Regulation of Broadcasting
§29.6 False Advertising and the Relation Between Political and Econornic Rights
§29.7 Subsidizing Speech
§29.8 The Economics of Religious Freedom
Suggested Readings
Problems

CHAPTER 30 SEARCHES, SEIZURES AND INTERROGATIONS

§30.1 The Right of Privacy Revisited
§30.2 Fourth Amendment Rernedies
§30.3 The Puzzle of Selflncrimjnatjon and Coerced Confessions
Suggested Readings
Problems

PART VIII COMPARA TIVE AND INTERNATIONAL LAW

CHAPTER 31 COMPARATIVE AND INTERNATIONAL LAW

§31.1 Comparative Law
§31.2 Treaties and Other International Agreements
§31.3 Dumping and the Free-Trade Question
§31.4 Foreign Direct Investment
§31.5 The Alien Tort Statute
§31.6 Forum Selection Clauses
Suggested Readings
Problems
INDEX


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