經濟學對法律分析的影響開始得很早(早在1939年,芝加哥大學法學院就聘任了一位經濟博
士),不過,一般學者公認Coase (1960)算是現代「法律經濟學」的濫觴。
在智識上,「法律的經濟分析」有兩大趣味:一方面,利用經濟學的分析概念探討法律問題,
這是經濟學的擴充。另一方面,成文法和不成文法所形成的架構,提供了經濟活動的基礎;因
此,對法律問題的探討,使經濟學的架構更為完整。
Topics in Law and Economics I

The contact between economic analysis and legal studies started quite early. In
the US, University of Chicago Law School appointed the first Ph.D. in economics
to its faculty as early as 1939, but it is generally agreed that the modern law
and economics movement was launched by Coase’s seminal paper “The problem of
social cost,” published in 1960. Intellectually speaking the thriving discipline
of law and economics has two appealing characteristics: First, it applies the
framework of economic analysis to study legal issues and is therefore an
expansion of economic analysis. Secondly, the legal framework constitutes what
Coase has termed “the institutional structure of production,” in the present
case it should be interpreted as “the institutional structure of economic
activities,” and the study of law and related issues would enhance the
understanding of economics about social phenomena in general and economic
activities in particular. Now almost all the leading law schools in the US have
at least one Ph.D. in economics on their faculty. Moreover, the very young field
has now about ten journals devoted to publishing research works in the general
area of law and economics. Professional associations of law and economics have
been formed not only in the US; there are now charters of Law and Economics
associations in Canada, Europe, Latin America, and one for Asia is in the making.

The goal of the course is to start with a general introduction of the economic
analysis of law, including discussions of the historical background, basis
analytical framework, and important legal cases. Emphasis will not be on the
mathematical techniques but the conceptual structure of the approach. Then the
famous Coase Theorem will be illustrated with both theoretical and empirical
materials.

The choice of textbooks has been a calculated one. There are several popular as
well as widely used texts. Notably Posner’s 《Economic Analysis of Law》, now in
its fifth edition, has been used by generations of students who would like to
have a comprehensive introduction to law and economics. It is a treatise in the
best sense of the word. But its length of being close to 800 pages would incur a
reading assignment that not many students are likely to take up easily. The
other popular choice is the one by Cooter and Ulen, 《Law and Economics》, now in
its fourth edition, with a clear presentation of how to apply economic analysis
to examining legal issues. One drawback of adopting the book is that it uses a
fair amount of mathematics in its expositions, and as some of the students
taking the course are from the law school and therefore are not familiar with
mathematics, it would be very time consuming to go through the book in two
semesters. But this does not mean that the book, or part of it, will not be
included in the reading assignment. It will depend on the pace as well as how
the students respond to the materials currently assigned for reading.

As indicated above, the goal of the course will not be on training the students
to apply mathematical tools or econometric models to study legal issues. Rather,
the goal of the course will be to have a general review of the new discipline of
law and economics. In addition, the economic framework will be emphasized, so
that the students will be able to come up with something that they can use on
their own to analyze not only legal issues per se but more generally social
phenomena as well. In a sense, the course can be viewed as belonging to the
general area of institutional economics, with legal issues as the specific
sub-area for examination.

The pace of the course will be one chapter each from the two textbooks for each
week. The students are expected to read the materials beforehand and to take
turns preparing both a summary of the materials and related questions to be
examined further. There will be no midterm but the students will be required to
write periodic short essays, in groups of three, as the course moves along. At
the end of the term, each student will write an essay of 4000 words in length
about a subject of his or her choice that is related to the course. Sessions
will be conducted in the discussion format throughout the term; as such the
students are expected to come to the class well prepared, both concerning the
reading assignments and the issues as raised by their fellow students. The
students are encouraged to participate in and contribute to the discussions in
class.

The course is suitable for the third and fourth year undergraduates and MA and
Ph.D. students, and the students taking it are encouraged to have a clear goal
as to what they expect to learn from the course. While the undergraduates might
take the sequence of courses as an introduction to law and economics, graduate
students may try to look for a topic that might become the subject of their
thesis. A list of supplementary readings will be provided and the students are
encouraged to read some of the items on the list on their own. The term papers
can be related to either the required readings or these supplementary readings.

Now a few words about the textbooks are in order. There are two textbooks for
the first semester and both are in Chinese. The first one, I am a Physical
Education Instructor, has sixteen chapters. The format of the chapters is a
standard one: a theoretical framework coupled with a few short essays; the
former is to illustrate the analytical framework of economic analysis, while the
latter is to relate the analytical concepts to the real world. The first five
chapters are a short summary of the major elements of economic analysis. Then
there will be three chapters each devoted to applications to the issues in
sociology, political science, and law. Finally there are two chapters
summarizing the core spirit of economic analysis by identifying both the
behavioral theory and analytical approach involved.

The second textbook, titled 《Dr. Bear’s Random Walk in Law》, is a general
introduction of the economic analysis of law from the economic perspective.
There are 12 chapters and each chapter is a combination of both theoretical
discussions and one to two short essays illustrating the theories involved. The
book is novel in that it identifies the core concepts for both economics and
law; in particular cost is core to economics while externality is core to legal
studies.