First Party, Third Party, and Product Liability Systems: Can Economic Analysis of Law Tell Us Anything About Them?

Abstract

The recent criticism of economic analysis of law, though differing in its sources, has centered on the notion that economic efficiency always depends for its very meaning and for its application on values extraneous to it. Without judgments that economics cannot make about distributional fairness and about original rights, entitlements, or starting points, economic analysis gives no answers. According to this criticism, therefore, one should abandon economic analysis and return to notions of justice in law making. What the critics mean by justice, however, varies with each critic. To Ronald Dworkin it means going back to philosophy. To Duncan Kennedy it means ideology or his own intuitions about what is just. To Richard Epstein it seems to mean returning to the common law and common-law relationships. To others, I suppose, it means accepting what the majority wishes, as "just." All of these are, of course, what the new economic analysis of law sought to allow us to criticize, at least when they were viewed as ultimate sources of law.