Private Law Theory

Lee Anne Fennell and Richard H McAdams, The Distributive Deficit in Law and Economics, Minnesota Law Review (forthcoming 2015), available at SSRN. Lee Anne Fennell and Richard H McAdams’ The Distributive Deficit in Law and Economics is framed as a law and economics article but makes a significant contribution to property theory. The Distributive Deficit takes on the standard law and economics assertion ‘that tax is strictly superior to legal doctrine as a means of redistributing income’, (p 7) and the related assumption ‘that the distributive pattern in a society will be invariant to the political form of redistribution’ (p 14). As Fennell and McAdams note, the general acceptance of both tax superiority and the ‘invariance hypothesis’ in law and economics can be credited largely to the work of Louis Kaplow and Steven Shavell (see here, here, and here). Fennell and McAdams’ article is a devastating and wholly convincing critique of this line of reasoning, grounded in the failure of standard law and economics approaches to take into account political action costs … (more)

[Ezra Rosser, JOTWELL, 23 November]

First posted 2015-11-23 12:53:43