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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.
H ovencamp, H., 1983, "The Economics of Legal History"  6 7 Minnesota Law Review 645 at 652.
It w as comforting to read that Hovencamp writes against the utilitarian-economic analysis especially when
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
H ovencamp, 1983, p. 665.
Horwitz, M . 1973, The Transformation ofAmerican Law, cited H ovencamp, 1983, p. 670 etseq.
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.
Posner R. A., \9%\,The Economics ofJustice, Cambridge, Harvard University Press.
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.
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
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