Richard A. Posner

The Social Costs of Monopoly and Regulation

This paper presents a model and some highly tentative empirical estimates of the social costs of monopoly and monopoly-inducing regulation in the United States. Unlike the previous studies, it assumes that competition to obtain a monopoly results in the transformation of expected monopoly profits into social costs. A major conclusion is that public regulation is probably a larger source of social costs than private monopoly. The implications of the analysis for several public policy issues, such as appropriate policy toward mergers and price discrimination, are also discussed.

The Long-Run Growth in Obesity as a Function of Technological Change

This paper analyzes the forces contributing to the worldwide long-run rise in obesity and the role of public interventions in affecting its continued growth. A growth in obesity in a population must result from the growth of calorie consumption outpacing the growth of physical activity. Yet historically in developed countries, obesity has grown with modest rises in calorie consumption and with a substantial increase in both exercise and dieting. We consider the economic incentives that give rise to the long-run growth in obesity by stimulating intake of calories at the same time as discouraging the expending of calories on physical activity, whether in work or leisure. We argue that technological change provides a natural interpretation of the long-run growth in obesity, that it predicts that the effect of income on obesity changes from positive to negative with economic development, and that it implies that technological change may not continue to raise weight. We discuss the positive and normative impacts of direct and indirect public interventions to reduce obesity.

The economic structure of tort law

Written by a lawyer and an economist, this is the first full-length economic study of tort law--the body of law that governs liability for accidents and for intentional wrongs such as battery and defamation. Landes and Posner propose that tort law is best understood as a system for achieving an efficient allocation of resources to safety--that, on the whole, rules and doctrines of tort law encourage the optimal investment in safety by potential injurers and potential victims. The book contains both a comprehensive description of the major doctrines of tort law and a series of formal economic models used to explore the economic properties of these doctrines. All the formal models are translated into simple commonsense terms so that the math less reader can follow the text without difficulty; legal jargon is also avoided, for the sake of economists and other readers not trained in the law. Although the primary focus is on explaining existing doctrines rather than on exploring their implementation by juries, insurance adjusters, and other real world actors, the book has obvious pertinence to the ongoing controversies over damage awards, insurance rates and availability, and reform of tort law-in fact it is an essential prerequisite to sound reform. Among other timely topics, the authors discuss punitive damage awards in products liability cases, the evolution of products liability law, and the problem of liability for mass disaster torts, such as might be produced by a nuclear accident. More generally, this book is an important contribution to the law and economics movement, the most exciting and controversial development in modern legal education and scholarship, andwill become an obligatory reference for all who are concerned with the study of tort law.

What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)

This article presents a positive economic theory of the behavior of appellate judges and Justices. The essay argues that the effort to insulate judges from significant economic incentives, through devices such as life tenure and stringent conflict of interest rules, has not rendered judicial behavior immune to economic analysis. Drawing on analogies to the managers of non-profit enterprises, to those who vote in political elections, and to theatrical spectators, the essay models the judicial utility function in terms that allows judges to be seen as ordinary people responding rationally to ordinary incentives. This model provides a theoretical alternative to the common view of judges as Prometheans or saints, and it suggests new ways of looking at such practical issues as the design of the judicial compensation system.

Creating and Enforcing Norms, with Special Reference to Sanctions

Two central puzzles about social norms are how they are enforced and how they are created or modified. The sanctions for violation of a norm can be categorized as automatic, guilt, shame, informational, bilateral- costly, and multilateral-costly. Problems in creating and enforcing norms are related to which sanctions are employed. We use our analysis of enforcement and creation of norms to analyze the scope of feasible government action either to promote desirable norms or to repress undesirable ones.

A Theory of Negligence

NEGLIGENCE-the failure to exercise the care of an ordinarily prudent and careful man-has been the dominant standard of civil liability for accidents for the last 150 years or so, in this as in most countries of the world; and accident cases, mainly negligence cases, constitute the largest item of business on the civil side of the nations trial courts. Yet we lack a theory to explain the social function of the negligence concept and of the fault system of accident liability that is built upon it. This article attempts to formulate and test such a theory, primarily through a sample of 1528 American appellate court decisions from the period 1875-1905.

A Statistical Study of Antitrust Enforcement

1. To show by example that the collection and analysis of statistical data on the operation of legal institutions is a fruitful and practicable undertaking for students of those institutions. 2. To set forth compactly such statistics on antitrust enforcement as could be obtained without elaborate and costly field research or computer operations, and to explore their implications for issues of antitrust policy. 3. To identify gaps and deficiencies in the existing statistical sources and to suggest methods for improving antitrust statistics.

The Influence of Economics on Law: A Quantitative Study

I often say that when you can measure what you are speaking about, and express it in numbers you know something about it; but when you cannot measure it, when you cannot express it in numbers, your knowledge is of a meagre and unsatisfactory kind: it may be the beginning of knowledge, but you have scarcely, in your thoughts, advanced to the stage of science, whatever the matter may be. [SIR WILLIAM THOMSON, LORD

An Economic Analysis of Copyright Law

INTELLECTUAL property is a natural field for economic analysis of law,1 and copyright is an important form of intellectual property. Yet while there are good introductions to the economics of copyright law, and a number of excellent articles on the economics of copying (as distinct from copyright law),2 no article examines the field of copyright as a whole, discussing the evolution and major doctrines in the law from an economic

Indefinitely Renewable Copyright

In this paper we raise questions concerning the widely accepted proposition that economic efficiency requires that copyright protection be limited in its duration (often shorter than the current term). We show that just as an absence of property rights in tangible property would lead to inefficiencies, so intangible works that fall into the public domain may be inefficiently used because of congestion externalities and impaired incentives to invest in maintaining and exploiting these works. Although a system of indefinite renewals could lead to perpetual copyrights or very long terms, this is unlikely. Our empirical analysis indicates that (1) fewer than 11 percent of the copyrights registered between 1883 and 1964 were renewed at the end of their 28-year term, even though the cost of renewal was small; (2) copyrights are subject to significant depreciation and have an expected or average life of only about 15 years; and (3) copyright registration and renewals are highly responsive to economic incentives for the shorter the expected life of a copyright and the higher the registration and renewal fees, the less likely are both registration and renewal. This in turn suggests that a system of modestly higher registration and renewal fees than at present, a relatively short initial term (20 years or so), and a right of indefinite renewal (possibly subject to an overall maximum term of protection of say 100 years) would cause a large number of copyrighted works to be returned to the public domain quite soon after they were created. A further benefit of indefinite renewal is that it would largely eliminate the rent-seeking problem that is created by the fact that owners (and users) of valuable copyrights that are soon to expire will expend real resources on trying to persuade (dissuade) Congress to extend the term.