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Unformatted text preview: be right in any event.104 That this objection should be brushed aside without delving deeply into the ramifications of the issues it raises significantly detracts from the credibility of economic efficiency advocates' position. Hovencamp, though, defends the historic assertion that the common law was economic in its posture, at least from Blackstone forward, who he asserts, was labelled by Bentham (rather unfairly he holds) as "nothing more than an apologist for the conservative status quo."105 Horwitz, claimed that the common law 'subsidised' efficient development by "a process amounting to transfer payments from the 'inactive' to the 'active' elements of society".106 His thesis, criticised by Epstein,107 Posner,108 and McLain,109 in some ways echoes critical legal theorists who criticise mainstream analysis as a mask for underlyi political activism. Horwitz argued that the common law was used because "change 103 Calabresi, G.1980, "About L a w and Economics: A Letter to Ronald Dworkin", [1979-80] 8 Hofstra Law Review 553-562. 104 H ovencamp, H., 1983, "The Economics of Legal History" [1983] 6 7 Minnesota Law Review 645 at 652. It w as comforting to read that Hovencamp writes against the utilitarian-economic analysis especially when t he raises the example that i might be more beneficial for h uman happiness in general to kill all the lawyers and spend vast sums to raise a generation of minstrels, [p. 657]; Riggs v Palmer (1889) 115 N Y . 506, 22 N.E. 188. 105 H ovencamp, 1983, p. 665. 106 Horwitz, M . 1973, The Transformation ofAmerican Law, cited H ovencamp, 1983, p. 670 etseq. 107 Epstein, R., 1982, "The Social Consequences to C o m m o n L a w Rules", (1982) 95 Harvard Law Review 1717, especially at pp. 1724-5. 108 Posner R. A., \9%\,The Economics ofJustice, Cambridge, Harvard University Press. 109 M cLain 1980 "Legal Change and Class Interests: A Review Essay on Morton Howitz's The Transformation of American Law", (1980) 68 California Law Review 382 at 392-4; also cited Hovencamp 1983, p. 673. 303 brought about through technical legal doctrine c an m ore easily disguise underlying political choices".110 Critical legal studies (CLS) attempt to discredit efficiency analysi as incoherent, and a legitimising mechanism for "oppressive social orders [which] hides the tensions in those orders".111 Efficiency, as a public policy active in the common law courts, therefore, in one sense is self-evident. It is in this sense that judges suffer under time constraints, budgetary considerations, and are jealous of the court's time. Thus, judges weigh up the cost of inquiry and the amount at stake between parties, and regulate the efficiency of the court' productive time. This must colour the way judges appraise the consequences of admitting evidence and giving parties liberty to argue minute aspects of each case. Whether or not judges make rules of law that have an underlying public policy of efficiency, is more problematic. According to Hovencamp: In short, one is left with the view that although economics m a y explain some aspects of legal change, it does not explain everything. At least, it does not explain everything very well. O ne is inevitably drawn back to an argument like Ronald Dworkin's that individuals have some rights that they are entitled to assert even though the protection of thoserightsis not the best public policy as measured by utilitarianism, Pareto optimality, wealth maximisation or any other criterion of efficiency.112 Distributional claims do not affect the amount of social wealth in a society. It does not matter whether social wealth in any society is measured in terms of 'utility' or a currenc metric. Justice is simply not an added convenience for efficiency. Justice considerations dictate that legal rights are to be protected, and the law and economics movement may institutionally overlap concepts of allocative efficiency, distributional equity, and 110 Horwitz, p. 100, cited Hovencamp 1983, pp. 672-3. Caudill, D. S., 1987, "Disclosing Tilt: A partial Defense of Critical Legal Studies and a Comparative Introduction to the Philosophy of Law-Idea", 7 2 Iowa Law Review 2 87, at p. 291. 112 H ovencamp 1983, pp. 693-4. 111 304 utilitarianism,113 a position which, to m a n y , is simply untenable. In addition, by seeking 'efficient outcomes' the underlying public policy of accurate damages awards risks compromise and sacrifice. It does not seem consistent with justice that some ideals are sacrificed only because it is cheaper for society to do so. Accuracy The conservatism which gripped the English Judiciary at the end of the 18th and beginning of the 19* century, has not disappeared. This is clear from the reported cases which involve claims for compensation referring to inflation, starting from the 1950's, where damages awards, inflation, and investment returns were first considered in Australia. Some cases portray a contradictory attitude by judges toward evidence and provide examples...
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This note was uploaded on 09/03/2012 for the course LAW 1501 taught by Professor Garva during the Three '12 term at University of Adelaide.

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