Too Good to Be True: The Positive Economic Theory of Law
![handle is hein.journals/clr87 and id is 1461 raw text is: BOOK REVIEW ESSAY
TOO GOOD TO BE TRUE: THE POSITIVE ECONOMIC
THEORY OF LAW
THE ECONOMIC STRUCTURE OF TORT LAW. By William M.
Landes and Richard A. Posner. Cambridge, Mass.: Havard University
Press, 1987. Pp. 329. $27.50.
Reviewed byJ.M. Balkin*
INTRODUCTION
William Landes and Richard Posner are two of the most prominent
advocates of the theory that the common law promotes efficiency. In an
effort to demonstrate their claim mathematically, they have collected
their many articles on tort law together in a new book, The Economic
Structure of Tort Law. As the authors note, this is the first book-length
study that attempts to apply [the efficiency hypothesis] to a single field
of law, as well as the first book-length study of the economics of tort
law (p. vii). In fact, the book's conclusions do not diverge greatly
from Judge Posner's treatment of tort law in his Economic Analysis of
Law.' The difference consists mainly in the greater depth of coverage
and the greater use of mathematical models to prove the efficiency of
various doctrines of law. The mathematically inexperienced will not
find the book easy going, and it is to the authors' credit that they always
attempt to repeat in descriptive terms what they try to demonstrate
mathematically. Nevertheless, anyone interested in law and economics
can learn a great deal from this book, especially those persons who dis-
agree with its conclusions. That is perhaps the highest compliment one
can pay any theoretical work.
However, despite the book's obvious merits, I find the argument
ultimately unconvincing for a number of reasons. First, Landes' and
Posner's assumptions form a cluster of beliefs that are not value free,
but are intimately related to and dependent upon modem American
conservative ideology. Second, the book's methodology is sufficiently
controversial and sufficiently manipulable that one must doubt seri-
ously the authors' claim to have proved that most rules of tort law are
efficient. Third, a major failing of the book is its reductionism, a reduc-
* Assistant Professor of Law, University of Missouri-Kansas City. Harvard Uni-
versity, A.B. 1978, J.D. 1981. I would like to thank Ian Ayres and Dennis Corgill for
their comments on previous drafts of this Article and Louis Kaplow for an enlightening
discussion of economic methodology. Of course, none of them should be held responsi-
ble for what I say here.
1. R. Posner, Economic Analysis of Law (3d ed. 1986).
1447](ViewImageLocal?handle=hein.journals/clr87&div=72&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Too Good to Be True: The Positive Economic Theory of Law
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most