Using the assumption that Posner's book Economic Analysis of Law affects first-year law school students – who will later be in positions of decision-making power such as judges, legislators, administrators, legal scholars or educators – as a mental experiment, it failed Buchanan's test on the grounds that “The jurisprudential setting or framework within which his whole economic analysis of law is placed does not seem to have been critically examined” (p. Buchanan ( 1974) was concerned that good economics based on a bad or misguided conception of legal process would not achieve the structural and procedural changes needed. As Tullock ( 1971) stressed in the preface of his book, the innovative nature or focus of his contribution was in applying the methods of modern welfare economics or tools of social sciences in general to law and legal institutions. The Chicago School stresses that economics helps to specify the effects of the law in the real world.
His contribution The Logic of the Law was published in 1971, appearing 2 years before Posner's Economic Analysis of Law 1 1 According to Sunstein ( 2016), Posner dislikes the term “law and economics” preferring economic analysis of law. Posner, the key influential figure in the field of Law and Economics, but rather by one of the founding fathers of Public Choice namely, Gordon Tullock, whose formal education was in law. The seminal book on Law and Economics was not authored by Chicago-based Richard A.
Incorporating insights of Public Choice into Law and Economics is a natural avenue, as both study non-market decision-making and interactions between the legal environment and the public sector (Durden & Marlin, 1990). The paper then finishes with a discussion of a selected number of topics covering areas such as corruption, tax compliance, shitstorms/firestorms, constitutional choices, globalization, and international organizations all of which present scientific challenges when applying pure Law and Economics approaches without also implementing a Public Choice analysis. I also refer to the connectivity of Behavioral Law and Economics and Behavioral Public Choice. Within this argument, I examine the evolution of experimental methods by looking at laboratory, field, and natural experiments and conducting a very simple scientometrics analysis on the relative frequency of experimental studies in journals such as Public Choice, European Journal of Political Economy, Constitutional Political Economy, Journal of Law and Economics, and Journal of Law, Economics and Organization compared with top economics journals such as American Economic Review, Quarterly Journal of Economics, Journal of Political Economy, Econometrica, or Review of Economic Studies. In this paper I discuss how Law and Economics can benefit from incorporating some insights from Public Choice into their analyses.