The Pursuit of Justice: Law and Economics of Legal Institutions

313 Pages·2010·3.813 MB·English

by  Edward J. López (eds.)

THE PURSUIT OF JUSTICE
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T P J
HE URSUIT OF USTICE
LAW AND ECONOMICS OF
LEGAL INSTITUTIONS
Edited by
Edward J. López
Foreword by
Robert D. Tollison
Published in cooperation with The Independent Institute
THE PURSUIT OF JUSTICE
Copyright © The Independent Institute, 2010.
Softcover reprint of the hardcover 1st edition 2010978-0-230-10244-6
All rights reserved.
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First published in 2010 by
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ISBN 978-0-230-10245-3 ISBN 978-0-230-10949-0 (eBook)
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First edition: June 2010
10 9 8 7 6 5 4 3 2 1
Contents
List of Illustrations vii
Foreword ix
Robert D. Tollison
Acknowledgments xi
1. An Introduction to The Pursuit of Justice 1
Edward J. López
2. The Rise of Government Law Enforcement in England 19
Nicholas A. Curott and Edward P. Stringham
3. Electoral Pressures and the Legal System: Friends or Foes? 37
Russell S. Sobel, Matt E. Ryan, and Joshua C. Hall
4. Romancing Forensics: Legal Failure in Forensic Science
Administration 51
Roger G. Koppl
5. Judicial Checks on Corruption 71
Adriana S. Cordis
6. Effects of Judicial Selection on Criminal Sentencing 103
Aleksandar Tomic and Jahn K. Hakes
7. Economic Development Takings as Government Failure 123
Ilya Somin
8. On the Impossibility of “Just Compensation” When
Property Is Taken: An Ethical and Epistemic Inquiry 145
John Brätland
9. The Lawyer-Judge Hypothesis 169
Benjamin H. Barton
10. Class Action Rent Extraction: Theory and Evidence of
Legal Extortion 193
Jeffrey Haymond
vi Contents
11. Cy Pres and Its Predators 217
Charles N. W. Keckler
12. Licensing Lawyers: Failure in the Provision of Legal Services 235
Adam B. Summers
Bibliography 255
Notes on Contributors 283
Index 289
Illustrations
Tables
3.1 Average Judicial Quality Ranking by Selection
Process, 2004 40
3.2 Determinants of State Legal Liability Rankings 41
3.3 Comparison of Partisan vs. Nonpartisan Election States 42
3.4 Election Years vs. Nonelection Years 44
3.5 The Monthly Timing of Wrongful Convictions 46
5.1 States with Most and Least Convictions Per State
Government Employee 76
5.2 Summary Statistics 77
5.3 The Effect of Judicial Independence and Constitutional
Rigidity on Corruption in the United States 78
5.4 Correlation Coefficients between Corruption Indicators 83
5.5 Countries with Highest and Lowest Corruption Scores
According to Corruption TI Index 84
5.6 Correlation Coefficients between Judicial Independence
Indicators 84
5.7 Countries with Most and Least Independent Judiciaries
According to Judicial Independence (I) Index 85
5.8 Descriptive Statistics of Cross-Country Data 87
5.9 The Effect of Judicial Independence (I) on Corruption TI 90
5.10 The Effect of Judicial Independence (II) on Corruption TI 93
5.11 The Effect of Judicial Independence (III) on Corruption TI 95
5.12 The Effect of Constitutional Review on Corruption TI 96
5.13 The Effect of Judicial Independence on Corruption TI:
Pooled OLS, WLS, and Panel Estimations 98
6.1 Judicial Selection Mechanisms 107
6.2 Summary Statistics 114
6.3 Rates of Incarceration and Mean Sentence Lengths, by
Conviction Charge and Judicial Selection System 115
6.4 Predicted Effects of Variables Upon Incarceration and
(Conditional) Sentence Length 116
6.5 Incarceration and Sentence Length Models (Judges Grouped
by Initial Selection Method) 118
viii Illustrations
6.6 Incarceration and Sentence-length Models, Re-Classifying as
Elected Judges Those Appointed Judges Who Are Subject to
Retention Elections 119
10.1 2007 State Spending on Tobacco Prevention 212
FIGURE
4.1 Locus of Breakeven Values 68
Foreword
Robert D. Tollison
P
ublic choice and law and economics were distinct revolutions in economic
thought, expanding the economic method of homo economicus into areas
traditionally reserved for other disciplines. Both developments took place at
approximately the same time (the 1950s and 1960s), and many of the same
scholars participated in laying the theoretical foundations in both public
choice and law and economics. A partial listing in no particular order would
include Ronald Coase, James Buchanan, Gordon Tullock, Gary Becker,
Richard Posner, George Stigler, Henry Manne, Armen Alchian, Harold
Demsetz, and still others. Over time, as these new subdisciplines found
acceptance as “normal science,” the two areas of research evolved into courses
and research programs that were and largely remain independent of one
another. Recognizing that I am painting with a broad brush, the law and
economics subdiscipline grew into a largely normative enterprise of evaluat-
ing legal rules and institutions relative to some normative standard such as
economic efficiency. One branch of public choice produced what sometimes
seemed like never-ending and highly complicated analyses of voting rules
and other political institutions. But a second tradition of positive public
choice also emerged, in which economic methods were applied to politics
and political decision-making in order to understand how government
worked as opposed to how it “ought” to work. In the positive economic
approach, government is not decried as being “inefficient” in some sense,
but rather is seen as a purposeful enterprise organized, staffed, and run by
the children of Adam Smith and Bernard Mandeville.
The maintained hypothesis here is that law and economics shied away
from the positive economic analysis of law and its attendant actors and insti-
tutions. This is not to say that there have been zero contributions in this
vein. The point is simply that there is more than ample room for develop-
ment here, which brings me to this volume.
Edward Lo´pez and his co-authors have produced an original book that
contributes significantly to the positive economics of law and economics.
This to me is a valuable and useful undertaking, and it will hopefully stimu-
late additional work along these lines. Rather than, for example, looking at
law and economics as a critique of legal decision making vis-à-vis an eco-
nomic efficiency standard, these authors seek to model and explain/predict