Law and Economics in Europe and the U.S.: The Legacy of Juergen Backhaus PDF
Preview Law and Economics in Europe and the U.S.: The Legacy of Juergen Backhaus
The European Heritage in Economics and the Social Sciences Series Editor: Jürgen Georg Backhaus Alain Marciano Giovanni Battista Ramello Editors Law and Economics in Europe and the U.S. The Legacy of Juergen Backhaus The European Heritage in Economics and the Social Sciences Volume 18 Series editor Jürgen Georg Backhaus Krupp Chair in Public Finance and Fiscal Sociology University of Erfurt Erfurt, Germany The European heritage in economics and the social sciences is largely locked in languagesotherthanEnglish.WitnesssuchclassicsasStorch’sCoursd’Economie Politique, Wicksell’s Finanztheoretische Untersuchungen and Geld, Zins und Güt- erpreiseorPareto’sTrattatodiSociologiaGenerale.Sinceabout1937,partlycaused bytheforcedexodusofmanyscholarsfromtheGermanlanguagecountriesandthe international reactions to this event, English has become the undisputed primary language of economics and the social sciences. For about one generation, this lan- guage shift did not result in a loss of access to the European non-English sources. However,afterforeignlanguagerequirementsweredroppedasentrypre-requisites for receiving the PhD at major research universities, the European heritage in eco- nomicsandthesocialscienceshasbecomelargelyinaccessibletothevastmajority ofpracticingscholars. In this series, we hope to publish works that address this problem in a threefold manner.AnaspectoftheEuropeanheritageinalanguageotherthanEnglishshould becriticallydocumented anddiscussed, reconstructed andassessedfromamodern scientific point of view, and tested with respect to its relevance for contemporary economic, social, or political discourse. WewelcomesubmissionsthatfitthisbillinordertomaketheEuropeanheritage in economics and the social sciences available to the international research community of scholars in economics and the social sciences. More information about this series at http://www.springer.com/series/5902 Alain Marciano Giovanni Battista Ramello (cid:129) Editors Law and Economics in Europe and the U.S. The Legacy of Juergen Backhaus 123 Editors AlainMarciano GiovanniBattista Ramello UniversitédeMontpellier,LAMETA-CNRS Universitàdel Piemonte Orientale Montpellier Alessandria France Italy ISSN 1572-1744 ISSN 2197-5892 (electronic) TheEuropean Heritage in Economicsandthe Social Sciences ISBN978-3-319-47469-4 ISBN978-3-319-47471-7 (eBook) DOI 10.1007/978-3-319-47471-7 LibraryofCongressControlNumber:2016954519 ©SpringerInternationalPublishingAG2016 Thisworkissubjecttocopyright.AllrightsarereservedbythePublisher,whetherthewholeorpart of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission orinformationstorageandretrieval,electronicadaptation,computersoftware,orbysimilarordissimilar methodologynowknownorhereafterdeveloped. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publicationdoesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfrom therelevantprotectivelawsandregulationsandthereforefreeforgeneraluse. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authorsortheeditorsgiveawarranty,expressorimplied,withrespecttothematerialcontainedhereinor foranyerrorsoromissionsthatmayhavebeenmade. Printedonacid-freepaper ThisSpringerimprintispublishedbySpringerNature TheregisteredcompanyisSpringerInternationalPublishingAG Theregisteredcompanyaddressis:Gewerbestrasse11,6330Cham,Switzerland Contents The Law, The Economy, The Polity Jürgen Backhaus, A Thinker Outside the Box .. ..... .... .... .... .... .... ..... .... 1 Jean-Michel Josselin, Alain Marciano and Giovanni Battista Ramello Economic Efficiency and the Law: Distinguishing Form from Substance... .... ..... .... .... .... .... .... ..... .... 17 Richard E. Wagner Bootleggers and Baptists in the Garden of Good and Evil: Understanding America’s Entangled Economy.... .... .... ..... .... 31 Dima Yazji Shamoun and Bruce Yandle Hobbesian and Contractarian Constitutions.. .... .... .... ..... .... 55 Geoffrey Brennan and Giuseppe Eusepi Reforming the Fiscal Constitution: Holding Politicians Accountable Through Greater Transparency. .... .... .... ..... .... 75 James W. Douglas, Ringa Raudla and Robert S. Kravchuk The Power of Free as a Catalyst for Political Revolution ... ..... .... 89 Dennis W.K. Khong and P.C. Lim Regulatory Networks, Legal Federalism, and Multi-level Regulatory Systems. .... .... ..... .... .... .... .... .... ..... .... 109 Wolfgang Kerber and Julia Wendel Two Treatments of Pluralism: Canada and the United States..... .... 135 Margaret F. Brinig Marquis de Condorcet and the Two-dimensional Jury Model..... .... 155 Manfred J. Holler Updating the Law and Economics of Legal Parochialism ... ..... .... 171 Nuno Garoupa v vi Contents Procedure .... .... .... .... ..... .... .... .... .... .... ..... .... 185 Peter Lewisch and Jeffrey Parker Misconceptions About Emissions Trading in Europe... .... ..... .... 211 Edwin Woerdman and Andries Nentjes Introduction In July 2015, Jürgen Backhaus retired from his position as Professor at the UniversityofErfurt,afteralongandrichcareer,startedin1970attheUniversityof Constance as an undergraduate student and that brought him all around the world. He was Professor of Public Finance at the University of Maastricht from 1986 to 2001 and, from 2001 to 2015, he held the Krupp Foundation Chair in Public Finance and Fiscal Sociology at the University of Erfurt.1 Jürgen Backhaus pub- lished (and edited) tens of books and articles. He was, and still is, a scholar and a manofgreatimmenseculture.Oneofthoserarescholarswhoisknowledgeablein so different fields that it is impossible to name all of them. But even within aca- demia,JürgenBackhaus isnotonlyascholar. Healsoplayedtherole ofacultural entrepreneur.Helaunched,in1994,theEuropeanJournalofLawandEconomics, editedanimportantreferencebook,ElgarCompanionofLawandEconomics,and then had the idea of the Encyclopedia of Law and Economics that it is still an ongoing project involving a large number of contributors around the world, including ourselves as editors; he organized for decades one of the first and long-lasting European workshop in law and economics (first at the University of Maastricht and then at the University of Erfurt) and an interdisciplinary workshop in Heilbrönn. On the whole, he seemed to develop his scholarly activity as it were guided by the motto written by the Brazilian poet Vinicius De Moraes that said “Life is the art of encounter”. We had the chance to participate in many of those encounters organized by Jürgen, we developed there a significant part of our scholarshipandlastlywehadthehonor,inourturn,ofbeingpartofitaseditorsof journal and the encyclopedia. Therefore, in addition to continuing the work and carry out the activities he created,wefelttheneedtopayhimatributeandtosummarizewhathedidsofar. Of course, this is a burden that can hardly be done by two sole individuals. Consequently,wehadthechancetoinvolveanumberofwell-knownscholarsthat 1For a broader overview see his CV at https://www.uni-erfurt.de/fileadmin/user-docs/Finanz wissenschaft/Mitarbeiter/BackhausCVengllong-1.pdf. vii viii Introduction in different ways have been connected to him. They enthusiastically accepted to contribute to this celebration. Hence, this book is thus the result of one other new encounter. The aim was not really to make an exhaustive presentation of the Backhaus’swork,hiscontributiontolawandeconomicsortocharacterizethefield asitisnowadays,thankstohiscontribution.Wewereratherinterestedintryingto evidence some crucial features of the law and economics movement. We believe that these features are also important to understand Jürgen Backhaus’ work and conceptionoflawandeconomics.Thefirstchapterofthisvolume(co-writtenwith Jean-Michel Josselin) provides further evidence of that. In this introduction, we summarize the three most important points. The first important feature that characterizes law and economics, and that was too crucial for Jürgen Backhaus, relates to the European roots of law and eco- nomics.ItisnotsimplytodistinguishtheEuropeanJournalofLawandEconomics from a possible American counterpart nor to indicate the geographical location of its editors (him and Frank Stephen), that this name was chosen. Backhaus really believed that law and economics has a European legacy (see also Ramello 2016). Moreprecisely,hebelievedthatlawandeconomicshasa“continental”ratherthan Anglo-Saxon origins—let us note here that he also believed that there exists a particularly important continental tradition in public finance that leads to the developmentofpublicchoice(seeBackhausandWagner2005).Ofcourse,Jürgen Backhausdidnotignorethatlawandeconomicsandpublicchoice alsodeveloped in the USA—and in the rest of the world as well!—in a sort of dialogue or with continuousandrepeatedinteractions.Thisispreciselywhatthisvolumeevidences. A second feature that fundamentally characterizes law and economics, and that also characterized Jürgen Backhaus’ view of the economy, is precisely the crucial role of institutions and the importance of the interconnection between law, insti- tutions,andeconomy.Allthechaptersgatheredinthisvolumeillustrate,inoneway or the other, that no economy functions in an institutional vacuum and that insti- tutionsmatter,toputitdifferently.Uptothepointthatinstitutionsdonothavethe same meaning or role in different places. There is a form of relativism in law and economics that implies that a legal rule, an institution that exists in one country or in one environment emerged for specific reasons and that, as a consequence, one cannotcopyit,transplantiteasilyinanotherenvironment.Itcouldbesaidthatlaw andeconomicsis“comparative”inessence.Thisisalsowhatthesechapterstellus: we need to compare institutions to understand them. This naturally and logically leads us to the third feature that characterizes this volume:therespectiveroleofthemarketandthestate.Thisisavexedquestion,in particularineconomicsandinlawandeconomics.Ifmarketsareefficient,thenwhy shouldweneedlegalrules?Andtheyarenot,whatkindofinstitutionsdoweneed? The papers that are gathered in this volume all relate, in different ways, to these questions. They provide evidence that regulatory interventions of the state are far from costless but, on the other hand, that they are not useless. In particular, one aspectthatisparticularlyimportantistheroleofconstitutionstogroundandframe the economy. Introduction ix All these aspects do not, however, cover all Jorgen Backhaus’ research. Again Jürgen Backhaus is interested and knowledgeable in so many subjects and areas that it would be impossible to present all what he did. Alain Marciano Giovanni Battista Ramello References Backhaus, Juergen, and Richard E. Wagner. 2005. From Continental public finance to public choice:mappingcontinuity.HistoryofPoliticalEconomy,37(AnnualSupplement):314–32. Ramello, Giovanni B. 2016. The past, present and future of comparative law an economic, In Comparative Law and Economics, Eisenberg T. and Ramello GB. eds, Cheltenham, UK— Northampton,MA,USA:EdwardElgarPublishing.
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