法律创新的市场:欧美的法律与经济学

Nuno Garoupa, T. Ulen
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引用次数: 19

摘要

在过去25年左右的时间里,美国法律学院在法律学术方面有大量的创新,而世界其他地区的法律学者却很少。例如,因为我们都在法律和经济领域工作,我们都敏锐地意识到美国和欧洲在接受法律和经济方面的巨大差异。美国法律学院慷慨地接受了法律和经济学(以及其他一些法律创新),而欧洲(和世界其他地区)却没有。为什么美国在法律学术创新的产生和采用方面领先于世界?本文试图从法律和经济学的角度来回答这个问题。在第二部分中,我们将讨论两个定义问题——“法律创新”的含义和“法律与经济学”的含义。我们关注的学术创新是研究法律许多领域的新方法,比如女权主义法学,或者是对一个全新法律领域的原则和边界的阐述,比如老年法。通过“法律和经济学”,我们的意思是将经济分析应用于其应用不明显的任何领域。然后在第三部分中,我们提供了一系列轶事和实证研究,旨在表明法律和经济学在美国法律学术中比在欧洲法律学术中更为突出。然后,在第四部分中,我们寻求解释美国和欧洲法律学院在生产和采用法律学术创新方面的差异,特别是在法律和经济学方面。我们的中心观点是,高等和法律教育的竞争力是美国学术创新的主要原因,而欧洲高等和法律教育缺乏竞争(以及由此导致的缺乏创新动力)是差异的主要原因。我们进一步假设,法律和经济学的产生和采用只对那些经历过先前的法律学术创新-法律现实主义的人有吸引力。我们在法律现实主义与法律经济学的知识遗产之间划了一条清晰的界线。在确定竞争和法律现实主义作为产生和采用法律学术创新的主要解释之前,我们仔细研究(并拒绝)了大量的替代解释,如政治意识形态、金钱、英美法系和大陆法系之间的差异、法律教育的结构等等。在第五部分中,我们将创新和扩散的标准经济理论与我们在本文前四个部分中的观察联系起来。创新和扩散的经济理论确定了三个因素——需求、供给和市场结构——来决定创新和扩散的存在和速度。我们将这些因素中的每一个与美国和欧洲之间可观察到的差异联系起来,表明我们对法律学术创新的产生和采用的解释遵循与生产技术创新的经济理论相同的因素。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Market for Legal Innovation: Law and Economics in Europe and the United States
There have been a large number of innovations in legal scholarship in the U.S. legal academy over the past 25 or so years and very few from legal scholars in other parts of the world. For instance, because both of us work in the area of law and economics, we were both acutely aware of the large differences in the receptivity to law and economics as between the U.S. and Europe. The U.S. legal academy has generously embraced law and economics (and some other legal innovations), while Europe (and the rest of the world) has not. Why has the U.S. led the world in the production and adoption of legal scholarly innovations? This Article seeks to answer that question generally and with particular reference to law and economics. In Part II we deal with two definitional issues - what we mean by a "legal innovation" and what counts as "law and economics." The scholarly innovations on which we focus are new methods of looking at many areas of the law, such as feminist jurisprudence, or the articulation of the principles and boundaries of an entire new area of law, such as elder law. By "law and economics," we mean the application of economic analysis to any of the area to which its application would not be obvious. Then in Part III we offer a series of anecdotes and empirical studies designed to show that law and economics is much more prominent in U.S. legal scholarship than in European legal scholarship. We then seek, in Part IV, explanations for the differences between the U.S. and European legal academies in their production and adoption of legal scholarship innovations generally and with respect to law and economics particularly. Our central claim is that it is the competitiveness of higher and legal education that is the principal explanation for the scholarly innovativeness of the U.S. and the lack of competition (and the consequent lack of an incentive to innovate) in European higher and legal education that explains the differences. We further hypothesize that the production and adoption of law and economics are attractive only to those who have experienced a prior legal scholarly innovation - legal realism. We draw a clear line of intellectual heritage from legal realism to law and economics. Before settling on competition and legal realism as the principal explanations for the production and adoption of legal scholarship innovations, we canvass (and reject) a large number of alternative explanations, such as political ideology, money, the differences between common and civil law systems, the structure of legal education, and more. In Part V we draw a connection between the standard economic theory of innovation and diffusion and our observations in the prior four sections of the Article. That economic theory of innovation and diffusion identifies three factors - demand, supply, and market structure - as determining the presence and pace of innovation and diffusion. We relate each of those factors to observable differences between the U.S. and Europe, showing that our explanation of the production and adoption of legal scholarly innovations follows the same factors as does the economic theory of innovation in production techniques.
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